Exhibit 10.36


 


RECORDER MEMO: This COPY has not been QUALITY ASSURED.


 


This page is part of your
document - DO NOT DISCARD


 


	
   

  	
   

  	
  20091425286

  	
  Pages:

  
	
   

  	
  [SEAL]

  	
  [BAR
  CODE]

  	
  0029

  
	
   

  	
   

  	
  Recorded/Filed
  in Official Records

  	
   

  
	
   

  	
   

  	
  Recorder’s
  Office, Los Angeles County,

  	
   

  
	
   

  	
   

  	
  California

  	
   

  
	
   

  	
   

  	
  09/18/09
  AT 08:00AM

  	
   

  



 




	
  FEES:

  	
   

  	
  0.00

  	
   

  
	
  TAXES:

  	
   

  	
  0.00

  	
   

  
	
  OTHER:

  	
   

  	
  0.00

  	
   

  
	
  PAID:

  	
   

  	
  0.00

  	
   

  






 


[BAR CODE]


LEADSHEET


 


[BAR CODE]


200909180180006


 


00001216363


 


[BAR CODE]


002346527


 


SEQ:

03


 


DAR - Title company (Hard Copy)


 


[BAR CODE]


 


THIS FORM IS
NOT TO BE DUPLICATED


 


	
  [ILLEGIBLE]

  	
   

  	
  T72

  



 

















 


CHICAGO
TITLE COMPANY


 


	
   

  	
  09/18/2009

  
	
  RECORDING
  REQUESTED BY

  	
  [BAR
  CODE]

  
	
  AND
  WHEN RECORDED MAIL TO:

  	
  *20091425286*

  
	
   

  	
   

  
	
  Munsch
  Hardt Kopf & Harr, P.C.

  	
   

  
	
  3800
  Lincoln Plaza

  	
   

  
	
  500
  N. Akard

  	
   

  
	
  Dallas,
  Texas 75201

  	
   

  
	
  Attention:
  Gregg Cleveland

  	
   

  



 


 


(Space
above this tine for Recorder’s use only)


 


SUBAREA “A”
PARTIAL ASSIGNMENT OF OWNER PARTICIPATION AGREEMENT


AND CONSENT
TO ASSIGNMENT


 


THIS SUBAREA “A” PARTIAL ASSIGNMENT OF OWNER PARTICIPATION AGREEMENT AND
CONSENT TO ASSIGNMENT (this “Agreement”)  is entered into as of this 17th  day of September,  2009, by and between SF NO HO LLC, a
California limited liability company (“Assignor”),
BEHRINGER HARVARD NOHO, LLC, a Delaware limited liability company (“Assignee”) and THE COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF LOS ANGELES, a public body, corporate and politic (the “CRA/LA”)  with respect to
that certain real property (the “Property”)  described more fully in Exhibit “A” (Legal Description)
attached hereto and incorporated herein by this reference. Assignor, Assignee
and the CRA/LA shall hereinafter sometimes be referred to individually as a “Party” and collectively as the “Parties.”


 


SEE EXHIBIT A and “B”


 


RECITALS


 


WHEREAS, SL No Ho, LLC, a California limited liability company (“Developer”)  and the CRA/LA entered into that certain Owner Participation
Agreement dated as of March 5, 2002, as supplemented and amended by (i) that
certain First Implementation Agreement dated as of November 18, 2002, (ii) that
certain Second Implementation Agreement dated as of December 12, 2003 (the
“Second Implementation”),  (iii) that certain Third
Implementation Agreement dated as of October 1, 2004, (iv) that
certain Partial Assignment and Assumption Agreement dated as of December 18,
2003 from Developer to Assignor concerning Subarea A, (v) that certain
Second Partial Assignment and Assumption Agreement dated as of October 1,
2004 from Developer to No Ho Lofts, LLC, a Delaware limited liability company (“Subarea B Assignee”)  concerning Subarea B, (vi) that
certain Third Partial Assignment of Owner Participation Agreement and Consent
to Assignment, dated as of January 9, 2007 from Subarea B Assignee to
RedRock Noho Residential, LLC, a Delaware limited liability company and SMA
SPE, LLC,  a Delaware limited liability
company (collectively, “Subarea B-2 Assignee”), as tenants in common concerning Subarea
B-2, (viii) that certain Fourth Partial Assignment of Owner Participation
Agreement  and Consent to
Assignment, dated as of August 3, 2007 from No Ho Lofts, LLC, a Delaware
limited liability company to RedRock Noho Retail, LLC, a Delaware limited
liability company (the “Subarea B-1 Assignee”), concerning Subarea B-l (ix) that
certain Letter Agreement dated December 18, 2003 concerning the Los
Angeles County Metropolitan Transportation Authority right of way realignment
and exchange (the “First Letter Agreement”), (x) that certain Letter Agreement
dated March 4, 2004 correcting certain obligations under Item 103.1  (e)(3) (the “Second Letter Agreement”), (xi) that certain  Letter Agreement dated February 13,
2007 concerning certain construction obligations of Assignor, and


 


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RECORDING
REQUESTED BY


AND
WHEN RECORDED MAIL TO:


 


Munsch
Hardt Kopf & Harr, P.C.


3800
Lincoln Plaza


500
N. Akard


Dallas,
Texas 75201


Attention:
Gregg Cleveland


 


 


(Space
above this line for Recorder’s use only)


 


SUBAREA “A”
PARTIAL ASSIGNMENT OF OWNER PARTICIPATION AGREEMENT

AND CONSENT TO ASSIGNMENT


 


THIS SUBAREA “A” PARTIAL ASSIGNMENT OF OWNER PARTICIPATION. AGREEMENT
AND CONSENT TO ASSIGNMENT (this “Agreement”)  is entered into as of this 17 day of
September, 2009, by and between SF NO HO LLC, a California limited liability
company (“Assignor”).  BEHRINGER HARVARD NOHO, LLC, a Delaware
limited liability company (“Assignee”)  and THE COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF LOS ANGELES, a public body, corporate and politic (the “CRA/LA”)
with respect to that certain real property (the “Property”)  described more fully in Exhibit “A”
(Legal Description) attached hereto and incorporated herein by this
reference. Assignor, Assignee and the CRA/LA shall hereinafter sometimes be
referred to individually as a “Party” and
collectively as the “Parties.”


 


RECITALS


 


WHEREAS, SL No Ho, LLC, a California limited liability company (“Developer”)  and the CRA/LA
entered into that certain Owner Participation Agreement dated as of March 5,
2002, as supplemented and amended by (i) that certain First Implementation
Agreement dated as of November 18, 2002, (ii) that certain Second
Implementation Agreement dated as of December 12, 2003 (the “Second Implementation”), (iii) that
certain Third Implementation Agreement dated as of October 1, 2004, (iv) that
certain Partial Assignment and Assumption Agreement dated as of December 18,
2003 from Developer to Assignor concerning Subarea A, (v) that certain
Second Partial Assignment and Assumption Agreement dated as of October 1,
2004 from Developer to No Ho Lofts, LLC, a Delaware limited liability company (“Subarea B Assignee”)  concerning
Subarea B, (vi) that certain Third Partial Assignment of Owner
Participation Agreement and Consent to Assignment, dated as of January 9,
2007 from Subarea B Assignee to RedRock Noho Residential, LLC, a Delaware
limited liability company and SMA SPE, LLC, a Delaware limited liability
company (collectively, “Subarea B-2 Assignee”), as
tenants in common concerning Subarea B-2, (viii) that certain Fourth
Partial Assignment of Owner Participation Agreement and Consent to Assignment,
dated as of August 3, 2007 from No Ho Lofts, LLC, a Delaware limited
liability company to RedRock Noho Retail, LLC, a Delaware limited liability
company (the “Subarea B-1 Assignee”), concerning
Subarea B-l (ix) that certain Letter Agreement dated December 18,
2003 concerning the Los Angeles County Metropolitan Transportation Authority
right of way realignment and exchange (the “First
Letter Agreement”), (x) that certain Letter
Agreement dated March 4, 2004 correcting certain obligations under Item
103.1 (e)(3) (the “Second Letter
Agreement”), (xi) that certain Letter Agreement
dated February 13, 2007 concerning certain construction obligations of
Assignor, and


 


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(xii)
that certain Letter Agreement dated August 31, 2005 correcting Attachment
10 (collectively, the “OPA”).


 


WHEREAS, certain terms of the OPA are also reflected in the following
documents recorded against the Property: (i) Agreement Containing
Covenants Affecting Real Property/Affordability Covenants recorded as Document No. 03-3851364
in the records of the Los Angeles County Recorder’s office; and (2) Agreement
Containing Covenants Affecting Real Property recorded as Document No. 03-3851365
in the records of the Los Angeles County Recorder’s office (collectively, the “Regulatory Agreements”).


 


WHEREAS, any capitalized terms not otherwise defined in this Agreement
shall have the respective meanings ascribed to such terms in the OPA.


 


WHEREAS, pursuant to the OPA: Developer (i) has certain rights to
develop a mixed-use development in North Hollywood, California, known as NoHo
Commons (the “Project”);  and (ii) in consideration for
Developer developing the Project in accordance with the CRA/LA’s guidelines and
requirements, the CRA/LA will assist with financing for the Project by making
available to Assignor certain CRA/LA subsidies and facilitating certain loans
and grants.


 


WHEREAS, pursuant to that certain Partial Assignment of Owner
Participation Agreement and Consent to Assignment, dated as of December 18,
2003 (the “Subarea A  Assignment”),  Developer assigned to Assignor certain rights, duties and
obligations relating to the construction, operation and maintenance of Subarea
A.


 


WHEREAS, pursuant to that certain Second Partial Assignment of Owner
Participation Agreement and Consent to Assignment, dated as of October 1,
2004 (the “Subarea B Assignment”),
Developer assigned to the Subarea B Assignee all of its rights, duties and
obligations relating to the construction, operation and maintenance of Subarea
B and the Subarea B Improvements.


 


WHEREAS, pursuant to the that certain Third Partial Assignment of Owner
Participation Agreement and Consent to Assignment, dated as of January 9,
2007 (the “Subarea B-2 Assignment”),  the Subarea B Assignee assigned to the
Subarea B-2 Assignee all of its rights, duties and obligations relating to the
operation and maintenance of Subarea B-2 and the Subarea B-2 Improvements.


 


WHEREAS, pursuant to that certain Fourth Partial Assignment of Owner
Participation Agreement and Consent to Assignment, dated as of August 3,
2007 (the “Subarea B-l Assignment”),  the Subarea B Assignee assigned to the
Subarea B-l Assignee all of its rights, duties and obligations relating to the
operation and maintenance of Subarea B-l and the Subarea B-l Improvements.


 


WHEREAS, Assignor has agreed to transfer and convey to Assignee its fee
interest in Subarea A together with those certain apartment buildings
containing approximately 438 apartment units, and the other improvements,
structures and fixtures placed, constructed or installed on Subarea A
(collectively, the “Subarea A Improvements”)
and to assign Assignor’s rights, duties and obligations under the OPA and
Regulatory Agreements, with the exception of the Retained Obligations which are
not being assigned hereunder, to Assignee which are specifically set forth on Exhibit “B”
and relate solely to the operation and maintenance of Subarea A and the Subarea
A Improvements (collectively, the “Assignee
Property”),  all subject
to the terms and conditions of this Agreement.


 


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WHEREAS, Developer, the Subarea B Assignee, the Subarea B-l Assignee and
the Subarea B-2 Assignee shall retain all of the obligations contained in the
OPA that do not relate to the Assignee Property, including without limitation
all obligations relating to the Assignee Property that were retained by
Developer pursuant to the Subarea A Assignment, Subarea B (including Subarea
B-l and Subarea B-2), Subarea C, Subarea D, the Subarea B Improvements (including
the Subarea B-l Improvements and the Subarea-B-2 Improvements), the Subarea C
Improvements and the Subarea D Improvements (collectively, the “Non-Subarea A Obligations”) and Developer,
the Subarea B Assignee, the Subarea B-l Assignee and the Subarea B-2 Assignee
shall retain all of the rights contained in the OPA that do not relate to the
Assignee Property, including without limitation all rights relating to Subarea
B (including Subarea B-l and Subarea B-2), Subarea C, Subarea D, the Subarea B
Improvements (including the Subarea B-l Improvements and the Subarea-B-2
Improvements), the Subarea C Improvements and the Subarea D Improvements
(collectively, the “Non-Assigned Property”).


 


WHEREAS, Assignor and Assignee require CRA/LA’s execution of this Agreement
as the CRA/LA’s acknowledgement and agreement of the matters set forth in this
Agreement including, without limitation, those obligations and restrictions in
the OPA which continue to attach to the Assignee Property as set forth in this
Agreement and a release of the Assignee Property and the Assignee of all other
obligations, restrictions and requirements described in the OPA.


 


NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:


 


ARTICLE I


DEFINITIONS


 


Section 1.1                           Defined Terms. In
addition to terms defined elsewhere herein, the following terms shall have the
following respective meanings:


 


(a)                                     “Assigned Interests” means, only to the extent specifically set
forth on Exhibit “B”, all of Assignor’s right, title and interest under
the OPA and the Regulatory Agreements with respect to the ownership, operation
and maintenance of the Assignee Property together with any and all benefits
associated therewith which occur after the Effective Date. The Assigned
Interests are specifically set forth on Exhibit “B”, attached hereto and
incorporated herein by this reference, and it is the Parties intent that the
Assigned Interests include all rights under the OPA and the Regulatory
Agreements relating to the Assignee Property that are necessary for the
Assignee Property to receive all of the benefits established in the OPA and the
Regulatory Agreements for the Assignee Property, or that could reasonably be
inferred to be an integral part of the benefits that are appurtenant to the
Assigned Interests.


 


(b)                                    “Assumed Obligations” means those certain duties and obligations
under the OPA and the Regulatory Agreements relating to the ownership,
operation and maintenance of the Assignee Property specifically set forth as an
obligation of Assignee on Exhibit “B” which occur after the Effective
Date.


 


(c)                                     “Business Day” means any day on which banks are open to
conduct business in the state of California.


 


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(d)                                    “CRA/LA Audit” means that housing compliance audit currently
being conducted by the CRA/LA in regards to the Property for compliance with
the CRA/LA Housing Policy and/or the Housing Management Plan.


 


(e)                                     “Effective Date” means the date upon which fee title to the
Assignee Property is conveyed to Assignee.


 


(f)                                       “HUD Loan” means the loan evidenced by and described in
that certain Loan Agreement (Number 106620 of City Contracts) between the City
of Los Angeles, as lender, and the CRA/LA, as borrower, relating to the
Project, dated May 4, 2004, as assigned to and assumed by Developer
pursuant to that certain Assignment and Assumption Agreement by and between the
CRA/LA and Developer entered into as of August 27, 2004.


 


(g)                                    “Retained Obligations” means those certain obligations and duties of
Assignor under the OPA relating to the acquisition and construction of the
Assignee Property that are specifically set forth as an obligation of Assignor
on Exhibit “C”.


 


ARTICLE II


ASSIGNMENT AND ASSUMPTION


 


Section 2.1                           Assignment. Assignor
hereby assigns and transfers to Assignee all of Assignor’s right, title and
interest in and to the Assigned Interests, without recourse, representation or
warranty, which occur after the Effective Date, it being the intent of the
Parties that all benefits including, without limitation, all subsidies and
other payments, relating to periods of time after the Effective Date are
assigned to Assignee and only those benefits including, without limitation, all
subsidies and other payments, relating to periods of time prior to the
Effective Date are retained by Assignor.


 


Section 2.2                           Acceptance and Assumption. Assignee hereby accepts the foregoing assignment and transfer from
Assignor, and Assignee hereby assumes and agrees to perform all of the Assumed
Obligations which occur after the Effective Date, and to be bound by, and to
comply from and after the Effective Date with, all of the terms and provisions
of the OPA and the Regulatory Agreements to the extent same relate to the
Assigned Interests and the Assumed Obligations.


 


Section 2.3                           Effect of Assignment.
From and after the Effective Date the Parties, by their execution of this
Agreement, agree that: (a) Assignee shall be deemed a party to the OPA and
any reference therein to “Developer” shall be deemed to refer to Assignee to
the extent said reference relates to the Assigned Interests and/or the Assumed
Obligations; (b) Assignor shall remain a party to the OPA solely with
respect to the Retained Obligations and, except as set forth in Subsection 2.3(a) above,
any reference to “Developer” shall be deemed to refer to Assignor, Developer,
the Subarea B Assignee, the Subarea B-l Assignee or the Subarea B-2 Assignee,
as the case may be; (c) Assignee shall be entitled to exercise and enforce
all rights to the Assigned Interests under the OPA as if Assignee had been a
signatory to the OPA or a beneficiary thereunder as of the date of its original
execution and Assignor shall no longer have any entitlement thereto; (d) CRA/LA
hereby releases Assignee, its successors and assigns and the Assignee Property
from all obligations, restrictions and requirements contained in the OPA,
except for compliance with the Assumed Obligations specified on Exhibit “B”
from and after the Effective Date; and (e) Assignor is not released from
and shall be responsible for the performance and


 


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satisfaction
of the Retained Obligations and Assignee shall have no liability therefore; (f) CRA/LA
hereby releases Assignor from all duties and obligations under the OPA and
Regulatory Agreements which occur after the Effective Date and the obligations
related to the Assignee Property assumed by Assignee as set forth on Exhibit “B”
which occur after the Effective Date.


 


Section 2.4                           Consent to Amendment.
Notwithstanding Section 2.3 above, from and after the Effective Date, any
future amendment of the OPA which does not affect any of the Assignee Property,
the Assigned Interests, or the Assumed Obligations shall not require the
consent or signature of Assignee. In addition, from and after the Effective
Date, the CRA/LA shall make a good faith effort to provide written notification
to Lender (defined below and at the address below) at least ten (10) days
prior to executing any proposed amendments or modifications to any of the
provisions of the OPA which are binding on the Assignee Property. From and
after the Effective Date, the CRA/LA agrees that any amendments or
modifications to any of the provisions of the OPA which are binding on the
Assignee Property shall not be binding on the Lender, unless the Lender has
consented to such amendments or modifications, such consent not to be
unreasonably withheld, delayed or conditioned.


 


Section 2.5                           Conflict of Terms. It
is the intent of the Parties that this Agreement effect an assignment to
Assignee of all of Assignor’s right, title and interest in and to the operation
and maintenance of the Assignee Property under the OPA to the extent of the
Assigned Interests and Assumed Obligations set forth on Exhibit “B”. Exhibit “B”
is intended as an exhaustive list of all assigned rights, benefits and
obligations. Therefore, notwithstanding the provisions set forth in Section 2.1
above, to the extent that a particular interest, obligation, or benefit under
the OPA is expressly assigned or assumed, as applicable, in Exhibit “B”,
such specific provision shall control over the general assignment language
contained in Sections 2.1 and 2.2 above.


 


ARTICLE III


ASSIGNOR’S REPRESENTATION AND
WARRANTY


 


Section 3.1                           No Default Under OPA.
Assignor hereby represents and warrants to Assignee that, neither the Assignor
nor, to the best of Assignor’s knowledge, the CRA/LA is in default of any of
its obligations under the OPA or the Regulatory Agreements.


 


ARTICLE
IV


CRA/LA
CONSENT


 


Section 4.1                           Consent to
Assignment. The CRA/LA acknowledges,
consents and agrees to the allocation of obligations and benefits as set forth
herein and shall not attempt to bestow any benefit upon Assignor under the OPA
unless and only to the extent that such action is consistent with the
allocation of such benefit as set forth in this Agreement. The CRA/LA consents
to: (i) the assignment, transfer and/or hypothecation of Assignee’s
interest in the Assignee Property and the OPA by Assignee to any lender
including, without limitation Red Mortgage Capital, Inc., its successors
and assigns pursuant to the Fannie Mae Delegated Underwriting and Servicing
Program (collectively, the “Lender”)  or
is assignee or designee including, without limitation, any assignee or designee
in lieu of foreclosure, without liability for any event of default under the
OPA or the Regulatory Agreements first accruing or arising prior to Lender’s or
its assignee’s or designee’s acquisition of the Assignee Property. The CRA/LA
shall have the right to require any transferee of the Assignee Property to
comply with the terms and obligations of the OPA and the Regulatory Agreements
first accruing and arising during the transferee’s period of


 


5

















 


ownership
in order for the transferee to enforce the benefits of, and the obligations of
the CRA/LA under, the OPA relating to the Assignee Property.


 


Section 4.2                           No Breach of the Assumed Obligations. The CRA/LA hereby certifies to Assignor, Assignee and Lender that,
subject to the findings of the CRA/LA Audit, Assignor (a) has performed
and is in compliance in all material respects with its obligations under the
OPA and the Regulatory Agreements, including the Retained Obligations, and (b) is
not currently in default of any of its obligations under the OPA or the
Regulatory Agreements, including the Retained Obligations. The CRA/LA
acknowledges that Assignor and Assignee are entering into this Agreement in
reliance upon said certification and that the CRA/LA shall hereafter be
estopped from pursuing any rights or remedies against Assignee or Lender in
connection with any alleged breach of an Assumed Obligation prior to the date
hereof.


 


Section 4.3                           Waiver and Release of Claims.


 


(a)                     The CRA/LA hereby acknowledges and agrees
that, from and after the Effective Date only, Assignee (and its successors)
shall be responsible for compliance with (and the Assignee Property shall only
be bound and encumbered by) only the Assumed Obligations which occur after the
Effective Date and, from and after the Effective Date, the CRA/LA expressly,
fully and forever releases and discharges Assignee and the Assignee Property from
any and all losses, expenses, claims, costs, damages, debts, attorneys’ fees,
actions, suits, judgments, awards, obligations and/or liabilities of any kind,
whether foreseeable or unforeseeable, known or unknown, suspected or
unsuspected, with respect to or in any way relating to or arising out of (i) the
Non-Subarea A Obligations and the Non-Assigned Property, and (ii) any
obligations under the OPA or the Regulatory Agreements which occurred prior to
the Effective Date including, without limitation, the Retained Obligations;
provided that nothing herein shall be deemed a release of Assignee from the
Assumed Obligations.


 


(b)                    The CRA/LA hereby acknowledges and agrees
that, from and after the Effective Date only, (i) Assignor (and its
successors) shall not be responsible for any obligations under the OPA or the
Regulatory Agreements which occur after the Effective Date except for the
Retained Obligations that have not been fully performed by Assignor, and (ii) the
CRA/LA expressly, fully and forever releases and discharges Assignor from any
and all losses, expenses, claims, costs, damages, debts, attorneys’ fees,
actions, suits, judgments, awards, obligations and/or liabilities of any kind,
whether foreseeable or unforeseeable, known or unknown, suspected or unsuspected,
with respect to or in any way relating to or arising out of the OPA or the
Regulatory Agreements which occur after the Effective Date; provided that
nothing herein shall be deemed a release of Assignor from the Retained
Obligations that have not been fully performed by Assignor.


 


(c)                     The Parties acknowledge that the Property is
currently being audited under the CRA/LA Audit and that the CRA/LA Audit may
reveal violations of the OPA, including but not limited to the CRA/LA Housing
Policy and/or the Housing Management Plan attached to the OPA. Notwithstanding
anything to the contrary in this Agreement, the Parties do hereby acknowledge
that this Waiver and Release of Claims does not extend to violations uncovered
in the CRA/LA Audit and the Parties further agree to correct any violations
uncovered by the CRA/LA Audit in a manner reasonably satisfactory to the
CRA/LA.


 


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(d)                    The Parties agree that the HUD Loan does not
encumber the Assignee Property nor is the Assignee responsible for repayment of
the HUD Loan and the Developer (as defined in the first Recital above) is
solely responsible for repayment of the HUD Loan. The CRA/LA expressly, fully
and forever releases and discharges, Assignor, Assignee and the Assignee
Property from any remedies which might be construed as in any way relating to
or arising out of a default of the HUD Loan under the OPA. The Parties agree that
any default by Developer on the HUD Loan shall be interpreted as a Developer
Event of Default pursuant to Section 1001.1 and Section I.E. of
Attachment No. 8 of the OPA and shall have no affect whatsoever on the
Assignee or the Assignee Property. The CRA/LA hereby acknowledges and agrees
that in the event of such Developer Event of Default, the CRA/LA shall have no
right against Assignor, Assignee or the Assignee Properly. Notwithstanding the
foregoing, the CRA/LA acknowledges and agrees that, as set forth in Exhibit “B”,
from and after the Effective Date, any and all payments set forth in Section I.A.2.
of Attachment 8, as amended by Section 22 of the Second Implementation,
which are allocated to Subarea A (each a “HUD Payment”) shall be paid to
Assignee. Assignor and Assignee shall prorate the HUD Payment applicable to the
CRA/LA Fiscal Year 2009-2010 between themselves.


 


Section 4.4                           No Cross Default. The
CRA/LA hereby acknowledges that:


 


(a)                                     A default of any of the Assumed Obligations
shall not be deemed a default of the Non-Subarea A Obligations and/or Retained
Obligations, and vice versa.


 


(b)                                    In the event of a default of any of the
Non-Subarea A Obligations, then the CRA/LA shall have no rights or remedies
against Assignor, Assignee or the Assignee Property and, to the extent that
such a default would entitle the CRA/LA to terminate the OPA, then the CRA/LA
shall have no right to terminate the OPA to the extent it relates to Subarea A
or the Subarea A Improvements, including without limitation, any of the
Assigned Interests.


 


(c)                                     In the event of a default of any of the
Retained Obligations, then the CRA/LA shall have no rights or remedies against
Assignee or the Assignee Property and, to the extent that such a default would
entitle the CRA/LA to terminate the OPA, then the CRA/LA shall have no right to
terminate the OPA to the extent it relates to Subarea A or the Subarea A
Improvements, including without limitation, any of the Assigned Interests.


 


Section 4.5                           Consent to Financing and Security Interest: The CRA/LA hereby acknowledges and agrees
that Assignee, and any successors to Assignee, shall have the right, at any
time and without notice to or the need for approval from CRA/LA, to encumber
all or any portion of the Assignee Property.


 


Section 4.6                           Relinquishment of Right of Reverter. The right of reveller related to the Assignee Property reserved to
CRA/LA under OPA Section 1002.3 and in the Grant Deed from CRA/LA and
recorded as Instrument No. 03-3851362 on December 23, 2003, is hereby
quitclaimed, waived, released and relinquished by the CRA/LA. The CRA/LA agrees
to execute and deliver on or prior to the Effective Date a quitclaim of such
right of reverter, and/or such other documentation evidencing the
relinquishment of such right by the CRA/LA as Assignee or Assignee’s title
company may reasonably require.


 


Section 4.7.                        Relinquishment of Option to Purchase. The option to purchase the Assignee Property reserved to CRA/LA under
OPA Section 1004 and in the Grant Deed from CRA/LA and recorded as
Instrument No. 03-3851362 on December 23, 2003, is hereby
quitclaimed, waived, released


 


7

















 


and relinquished by CRA/LA. CRA/LA agrees on or prior to the Effective
Date to execute and deliver a quitclaim of such option to purchase, and/or such
other documentation evidencing the relinquishment of such option by CRA/LA as
Assignee or Assignee’s title company may reasonably require.


 


Section 4.8                           Lender Reliance. Each
Party hereto hereby acknowledges and agrees that any Lender shall have the
right to rely on the contents and provisions of this Agreement and that such
Lender will rely on such content and provisions in connection with its loan to
Assignee.


 


Section 4.9                           Affordable Housing Subsidy. The CRA/LA acknowledges and agrees that (a) the Affordable
Housing Subsidy in the Public-Private Feasibility Agreement (Attachment No. 8
to the OPA) with respect to Subarea A is assigned to Assignee and that CRA/LA
will provide the Affordable Housing Subsidy payable for the Restricted Units
provided on Subarea A to Assignee in accordance with the provisions of the OPA,
(b) the amount of the Affordable Housing Subsidy is $1,988,276.24 per
annum which amount shall be paid to the owner of Subarea A by September 30
of each year, (c) the Affordable Housing Subsidy is scheduled to be paid
in twenty-one (21) equal annual installments beginning with the CRA/LA Fiscal
Year 2008-2009 and continuing annually until the CRA/LA Fiscal Year 2028-2029, (d) the
first installment of the Affordable Housing Subsidy was paid to Assignor on or
about September 30, 2008 for the CRA/LA Fiscal Year 2008-2009, (e) the
CRA/LA Fiscal Year is from July 1 to June 30 of each year, and (f) all
other subsidies and payments set forth in the OPA with respect to Subarea A
are, to the extent set forth in Exhibit “B”, assigned to Assignee.
Assignor and Assignee shall prorate the Affordable Housing Subsidy applicable
to the CRA/LA Fiscal Year 2009-2010 between themselves.


 


ARTICLE V


EFFECT OF ASSIGNMENT ON
INTERPRETATION OF OPA


 


Section 5.1                           Interpretation of OPA.
The Parties hereby acknowledge and agree that, from and after the Effective
Date, certain rights, duties and obligations under the OPA shall be interpreted
as follows:


 


(a)                                     The failure by Developer to commence or complete
construction of any improvements on time (or at all) on the Non-Assigned
Property shall not constitute a default on the part of Assignee and shall not
affect Assignee’s right to any benefit that Assignee may otherwise be entitled
to under the OPA.


 


(b)                                    With respect to the Assignee Property, the
CRA/LA shall have no right pursuant Section 1003.3 of the OPA to terminate
the OPA after the Effective Date of this Agreement.


 


(c)                                     The transfer of the Assignee Property to
Assignee constitutes a “First Sale” pursuant to Section 605.3. l(c) of
the OPA of the Subarea A Project Element, and that, upon payment by Assignor to
the CRA/LA of the amount required by Section 605.3.1(a) of the OPA,
if any, the Adjusted Project Costs shall be defined as the gross proceeds of
the sale of the Assignee Property pursuant to Section 605.3. l(b) of
the OPA.


 


(d)                                    The CRA/LA acknowledges that no payment is due
the CRA/LA under Section 605.3.1(c) of the OPA.


 


8

















 


(e)                                     Assignee shall be responsible only for the
accuracy of those representations and warranties of the Developer under the OPA
that relate to the Assignee Property from and after the Effective Date.


 


ARTICLE VI


INDEMNITIES


 


Section 6.1                           Assignor Indemnity.
Subject to Section 6.3, below, but without limiting the provisions of Section 4.3
or Section 5.1 hereof, Assignor hereby agrees to indemnify, defend and
hold harmless Assignee and Assignee’s officers, directors, trustees,
shareholders, members, partners, employees, beneficiaries, representatives,
managers, agents and controlling persons (collectively the “Indemnified Parties”) from and against any and all
expenses, losses, claims, damages and liabilities (including without limitation
reasonable attorneys’ fees and expenses) caused by, or in any way resulting
from or relating to, a breach by Assignor of any Assigned Interests or Assumed
Obligation prior to the Effective Date and a breach by Assignor of any Retained
Obligation.


 


Section 6.2                           Assignee Indemnity.
Subject to the provisions of Section 6.3, below, but without limiting the
provisions of Section 4.3 or Section 5.1 hereof, Assignee hereby
agrees to indemnify, defend and hold harmless Assignor and Assignor’s officers,
directors, trustees, shareholders, members, partners, employees, beneficiaries,
representatives, managers, agents and controlling persons (also collectively
the “Indemnified Parties”)  from
and against any and all expenses, losses, claims, damages and liabilities
(including without limitation reasonable attorneys’ fees and expenses) caused
by, or in any way resulting from or relating to, a breach by Assignee of any
Assigned Interests or Assumed Obligations on or after the Effective Date.


 


Section 6.3                           Indemnification Procedures. The respective obligations of Assignor and Assignee under Section 6.1
and Section 6.2, above, shall be subject to the following terms and
conditions:


 


(a)                                     As soon as reasonably possible, but no later
than thirty (30) days following an Indemnified Party’s receipt of notice of any
claim or other matter that may give rise to indemnification under this
Agreement (each a “Claim”), said
Indemnified Party shall notify in writing the Party responsible for the
applicable indemnification obligation (the “Indemnifying
Party”)  of such Claim. The Indemnifying
Party shall undertake the defense of the Claim with legal representation of the
Indemnifying Party’s choice but reasonably satisfactory to the Indemnified
Party. The notice required by this Section 6.3(a) shall state the
nature and basis upon which indemnification is sought. Failure of the
Indemnified Party to give the notice required by this Section 6.3(a) within
the applicable time period shall not relieve the Indemnifying Party of any
liability that the Indemnifying Party may have to the Indemnified Party except
to the extent the Indemnifying Party is prejudiced thereby. All costs and
expenses of such defense (including reasonable fees of counsel) and any
settlement or compromise resulting from the defense of any claim or other
matter that may give rise to indemnification under this Agreement that has been
consented to by the Indemnified Party shall be paid for by the Indemnifying
Party, provided that the Indemnifying Party’s obligation to indemnify such
Indemnified Party with respect to any such settlement or compromise shall be
fully satisfied by the payment by the Indemnifying Party of the amounts called
for by such settlement or compromise and any such settlement or compromise
approved by the Indemnified Party shall include a complete release of such
Indemnified Party.


 


9

















 


(b)                                    In the event that the Indemnifying Party fails
to undertake the defense of a Claim or advises the Indemnified Party of its
intention not to defend a Claim, the Indemnified Party will (upon further
written notice to the Indemnifying Party) have the right to undertake the
defense, compromise or settlement of said Claim on behalf of and for the
account and risk of the Indemnifying Party, and the Indemnifying Party shall
reimburse the Indemnified Party for any and all reasonable, third-party,
out-of-pocket costs and expenses (including reasonable attorney’s fees)
incurred by the Indemnified Party for the defense, compromise or settlement of
said Claim.


 


(c)                                     Any judgment, award, settlement or compromise
of any Claim, the defense of which has been undertaken by the Indemnifying
Party, shall be solely for the payment of money and shall be binding on the
Indemnified Party, and the amount of such judgment, award, settlement or
compromise shall be prima facie evidence of the amount (together with all
amounts in respect of costs and expenses referred to in Section 6.3(a),
above) which the Indemnifying Party is obligated to indemnify the Indemnified
Party under this Agreement with respect to any Claim. In the event of payment
by the Indemnified Party of any amount subject to indemnification under this
Agreement that neither the Indemnifying Party nor the Indemnified Party elect
to contest or defend as above provided, the actual amount of such payment shall
be prima facie evidence of the amount (together with all amounts in respect of
costs and expenses referred to in Section 6.3(a), above) which the
Indemnifying Party is obligated to indemnify the Indemnified Party under this
Agreement with respect to that payment.


 


(d)                                    In the event so requested by the Indemnifying
Party, the Indemnified Party shall use its reasonable best efforts to make
available all information and assistance reasonably required in the defense by
the Indemnifying Party of any Claim.


 


(e)                                     Any and all claims made by Assignor or any
Indemnified Party under Section 6.2 above shall be subject and subordinate
to the rights and liens of any bona fide third party beneficiary of a deed of
trust encumbering the Assignee Property.


 


ARTICLE VII


MISCELLANEOUS


 


Section 7.1                           Further Assignment of Assigned Interests. The CRA/LA acknowledges that, from and after
the Effective Date, Assignee may sell, assign, transfer, encumber or grant to
any third parties any rights, duties or interests in the Assigned Property
without the prior written consent of the CRA/LA.


 


Section 7.2                           Receipt of Further Payments. If Assignor receives, after the Effective Date, any payments or
benefits on account of any Assigned Interests, Assignor shall promptly notify
Assignee thereof, hold such amounts in trust for Assignee, and promptly (but in
no event later than thirty (30) days after Assignor’s receipt thereof) turn
over such amounts in full to Assignee or as Assignee may direct, in the same or
equivalent form received, without recourse, representation or warranty of
Assignor.


 


Section 7.3                           Survival. All
representations, warranties, covenants and agreements made by the Parties
hereunder shall be considered to have been relied upon by the Parties and shall
survive the execution, delivery and performance of this Agreement and all other
documents contemplated herein.


 


Section 7.4                           Successors and Assigns.
This Agreement, including, without limitation, the


 


10

















 


representations, warranties, covenants and agreements contained herein (a) shall
inure to the benefit of and be enforceable by the Parties and their respective
permitted successors, assigns and transferees, and (b) shall be binding
upon and enforceable against the Parties and their respective successors,
assigns and transferees.


 


Section 7.5                           Further Assurances.
Each of the Parties agrees to execute and deliver, or cause to be executed and
delivered, all such instruments, and to take all such action, as the other
Parties may reasonably require in order to effectuate the intent and purposes
of, and to carry out the terms of, this Agreement.


 


Section 7.6                           Costs and Expenses.
Except as otherwise expressly provided herein, Assignor and Assignee shall each
bear its own costs and expenses (including but not limited to attorneys’ fees
and expenses) in connection with the negotiation and preparation of this
Agreement.


 


Section 7.7                           Counterpart Execution.
This Agreement may be executed in any number of counterparts, each of which,
when so executed and delivered, shall be an original, but all of which together
shall constitute one Agreement binding on all of the Parties. Any signature
delivered by facsimile or telecopier shall be deemed to constitute an original
signature hereto.


 


Section 7.8                           Amendments; Waivers.


 


(a)                                     No amendment of any provision of this
Agreement shall be effective unless it is in writing and signed by all the
Parties, and no waiver of any provision of this Agreement, nor consent to any
departure by a Party therefrom, shall be effective unless it is in writing and
signed by the other Parties, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.


 


(b)                                    No failure on the part of any Party to excuse,
and no delay in exercising any right hereunder or under any related document
shall operate as a waiver thereof by such Party, nor shall any single or
partial exercise of any right hereunder or under any other related document
preclude any other or further exercise thereof or the exercise of any other
right. The rights and remedies of each Party provided herein and in other
related documents (i) are cumulative and are in addition to, and not
exclusive of, any rights or remedies provided by law, and (ii) are not
conditional or contingent on any attempt by such Party to exercise any of its
rights under any other related document against the other Parties or any other
entity.


 


Section 7.9                           Governing Law. This
Agreement shall be governed by and construed under, and the obligation of the
Parties hereunder shall be determined in accordance with, the laws of the State
of California (without regard to any conflict of laws provisions thereof).


 


Section 7.10                     Notices. All demands,
notices, requests, consents and communications required hereunder or under the
OPA shall be in writing and shall be deemed to have been duly given if
personally delivered by courier service or messenger, sent by overnight
delivery service, or facsimile transmission, or deposited in the mails, by
certified or registered mail, postage prepaid, return receipt requested, to the
following addresses, or such other addresses as may be furnished hereafter by
notice in writing:


 


11

















 


	
  To Assignee:

  	
  Behringer
  Harvard Multifamily OP I LP

  
	
   

  	
  15601
  Dallas Parkway, Suite 600

  
	
   

  	
  Addison,
  Texas 75001

  
	
   

  	
  Attention:
  Mark Alfieri

  
	
   

  	
  469/341-2471

  
	
   

  	
  214/655-1610
  (FAX)

  
	
   

  	
   

  
	
  With a copy to:

  	
  Munsch
  Hardt Kopf & Harr, P.C.

  
	
   

  	
  3800
  Lincoln Plaza

  
	
   

  	
  500
  N. Akard

  
	
   

  	
  Dallas,
  Texas 75201

  
	
   

  	
  Attention:
  Gregg Cleveland

  
	
   

  	
  214/855-7537

  
	
   

  	
  214/978-4364
  (FAX)

  
	
   

  	
   

  
	
  To Assignor:

  	
  SF
  No Ho LLC

  
	
   

  	
  c/o
  Fairfield Residential LLC

  
	
   

  	
  5510
  Morehouse Dr., Suite 200

  
	
   

  	
  San
  Diego, California 92121

  
	
   

  	
  Attn:
  Gino A. Barra

  
	
   

  	
  (619)
  457-2123

  
	
   

  	
  (619)
  457-3982 (FAX)

  
	
   

  	
  email:
  gbarra@ffres.com

  
	
   

  	
   

  
	
  With a copy to:

  	
  Meltzer,
  Purtill & Stelle LLC

  
	
   

  	
  1515
  East Woodfield Rd., Second Floor

  
	
   

  	
  Schaumburg,
  Illinios 60173-5431

  
	
   

  	
  Attn:
  Michael J. Wolfe

  
	
   

  	
  (847)
  330-6052

  
	
   

  	
  (847)
  330-1231 (FAX)

  
	
   

  	
  email:
  mwolfe@mpslaw.com

  
	
   

  	
   

  
	
  To the CRA/LA:

  	
  To
  the address provided for notices to the CRA/LA under the OPA.

  



 


All demands, requests, consents, notices and
communications shall be deemed to have been received if addressed in the same
manner described above (i) at the time of actual delivery thereof if
delivered by hand, by courier service or by facsimile transmission, or (ii) if
sent by overnight delivery service, then one (1) Business Day after
deposit thereof with such delivery service, or (iii) if sent by certified
or registered mail, then three (3) Business Days after certification or
registration thereof.


 


Section 7.11                     Integration. This
Agreement, together with the OPA, and any exhibits attached hereto, constitute
the entire agreement and understanding between the Parties with respect to the
subject matter hereof and supersede all prior agreements, understandings or
representations pertaining to the subject matter hereof, whether oral or
written. There are no representations, warranties or other agreements between
the Parties in connection with the subject matter hereof except as specifically
set forth or incorporated herein.


 


12

















 


Section 7.12                     Severability. If any
provision of this Agreement or any other agreement or document delivered in
connection herewith, is partially or completely invalid or unenforceable in any
jurisdiction, then that provision shall be ineffective in that jurisdiction to
the extent of its invalidity or un enforceability, but the invalidity or un
enforceability of that provision shall not affect the validity or
enforceability or any provision of this Agreement, all of which shall be
construed and enforced as if that invalid or unenforceable provision were
omitted, nor shall the invalidity or un enforceability of that provision in one
jurisdiction affect its validity or enforceability in any other jurisdiction.


 


Section 7.13                     Captions and Headings.
The section captions and headings in this Agreement are for convenience of
reference only and are not intended to be full or accurate descriptions of the
contents thereof. They shall not be deemed to be part of this Agreement and in
no way define, limit, extend or describe the scope or intent of any provisions
hereof.


 


Section 7.14                     Agreement Effective.
Notwithstanding any provision of this Agreement to the contrary, this Agreement
shall become effective only upon and simultaneous with, the transfer of the
Property from Assignor to Assignee by recorded deed.


 


[The
remainder of this page has been intentionally left blank

Signatures appear on the following page.]


 


13

















 


IN WITNESS WHEREOF, the Parties have executed
this Agreement as of the date first set forth above.


 


	
  “ASSIGNOR”:

  	
   

  
	
   

  	
   

  
	
  SF
  NO HO LLC,

  a California limited liability company

  	
   

  
	
   

  	
   

  
	
  By:

  	
  FF
  CALIFORNIA HOUSING FUND LLC,

  	
   

  
	
   

  	
  a
  Delaware limited liability company

  	
   

  
	
   

  	
  Its:

  	
  Manager

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  FF
  PROPERTIES, INC.,

  	
   

  
	
   

  	
   

  	
  a
  Delaware corporation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Gino A. Barra

  	
   

  
	
   

  	
   

  	
   

  	
  Gino A. Barra

  	
   

  
	
   

  	
   

  	
   

  	
  Vice President

  	
   

  



 


	
  “ASSIGNEE”:

  	
   

  
	
   

  	
   

  
	
  BEHRINGER
  HARVARD NOHO, LLC, a Delaware

  	
   

  
	
  limited
  liability company

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Mark T. Alfieri

  	
   

  
	
   

  	
   

  	
   

  
	
  Print:

  	
  Mark
  T. Alfieri

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  COO

  	
   

  



 


[Signatures
continue on the following page.]


 
















 


	
  The
  State of Texas

  	
  §

  	
   

  
	
   

  	
  §

  	
   

  
	
  County
  of Dallas

  	
  §

  	
   

  



 


BEFORE ME, the undersigned authority, on this day personally appeared
Mark T. Alfieri, Chief Operating Officer, of Behringer Harvard NOHO, LLC, a
Delaware limited liability company, known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that he executed
the same for the purposes and consideration therein expressed, in the capacity
therein stated, and as the act and deed of said limited liability company.


 


GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 14th day of September, 2009.


 


 


	
   

  	
   

  	
  /s/ Linda K.
  Perkins

  
	
   

  	
   

  	
  Notary
  Public

  
	
   

  	
   

  	
  Linda
  K. Perkins

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Seal:

  	
  

  



 

















 


CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT


 


	
  State
  of California

  
	
   

  
	
  County
  of San Diego

  
	
   

  
	
  On
  September 15, 2009 before me, Shannyn Daye Henkel, Notary Public,

  
	
  Date

  	
  Here insert Name and Title of the Officer

  
	
   

  
	
  personally
  appeared

  	
  Gino
  A. Barra

  
	
   

  	
  Name(s) of Signer(s)

  
	
  ,

  
			



 


[SEAL]


 


Place Notary Seal Above


 


who
proved to me on the basis of satisfactory evidence to be the person whose name
is subscribed to the within instrument and acknowledged to me that he executed
the same in his 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.


 


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

  	
  /s/
  Shannyn Daye Henkel

  	
   

  
	
   

  	
  Signature of Notary Public

  	
   

  



 


OPTIONAL


 


Though the
information below is not required by law, it may prove valuable to persons
relying on the document 

and could prevent fraudulent removal and reattachment of this form to another
document.


 


Description of Attached Document


 


	
  Title
  or Type of Document:

  	
   

  
	
  Document
  Date:

  	
   

  	
  Number
  of Pages:

  	
   

  
	
  Signer(s) Other
  Than Named Above:

  	
   

  
						



 


Capacity(ies) Claimed by Signer(s)


 


	
  Signer’s
  Name:

  	
   

  	
   

  	
   

  
	
  o

  	
  Individual

  	
   

  	
   

  
	
  o

  	
  Corporate
  Officer — Title(s):

  	
   

  	
   

  	
   

  
	
  o

  	
  Partner
  — o Limited o General

  	
   

  	
  RIGHT THUMBPRINT

  
	
  o

  	
  Attorney
  in Fact

  	
   

  	
  OF SIGNER

  
	
  o

  	
  Trustee

  	
   

  	
  Top of thumb
  here

  
	
  o

  	
  Guardian
  or Conservator

  	
   

  	
   

  
	
  o

  	
  Other:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Signer
  Is Representing:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Signer’s
  Name:

  	
   

  	
   

  	
   

  
	
  o

  	
  Individual

  	
   

  	
   

  
	
  o

  	
  Corporate
  Officer — Title(s):

  	
   

  	
   

  	
   

  
	
  o

  	
  Partner
  — o Limited o General

  	
   

  	
  RIGHT THUMBPRINT

  
	
  o

  	
  Attorney
  in Fact

  	
   

  	
  OF SIGNER

  
	
  o

  	
  Trustee

  	
   

  	
  Top of thumb
  here

  
	
  o

  	
  Guardian
  or Conservator

  	
   

  	
   

  
	
  o

  	
  Other:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Signer
  Is Representing:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
								



 


©
2007 National Notary Association · 9350 De Soto Ave., P.O. Box 2402 · Chatsworth, CA 91313-2402 · www.NationalNotary.org Item # 5907 Reorder:
Call Toll-Free 1-800-876-6827


 

















 


“THE
CRA/LA”


 


	
  THE
  COMMUNITY REDEVELOPMENT AGENCY OF

  	
   

  
	
  THE
  CITY OF LOS ANGELES, a public body, corporate and

  	
   

  
	
  politic

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Authorized Signatory

  	
   

  
	
  Print:

  	
  Authorized
  Signatory

  	
   

  
	
  Its:

  	
  Regional
  Administrator

  	
   

  



 


 


APPROVED
AS TO FORM:


 


CARMEN
A. TRUTANICH,


CITY
ATTORNEY


 


 


	
  By:

  	
  /s/
  Authorized Signatory 9/14/09

  	
   

  
	
   

  	
  Assistant/Deputy City Attorney

  	
   

  



 


 


APPROVED
AS TO FORM:


 


 


	
  By:

  	
  /s/
  Authorized Signatory

  	
   

  
	
   

  	
  Agency Special Counsel

  	
   

  



 

















 


CALIFORNIA
ALL-PURPOSE ACKNOWLEDGMENT


 


	
  STATE
  OF CALIFORNIA

  
	
   

  
	
  COUNTY
  OF Los Angeles

  
	
   

  
	
  On
  September 15, 2009 before me, Shannyn Daye Henkel, Notary Public

  
	
   

  	
  Name
  and Title of the Officer e.g. “JANE DOE, NOTARY PUBLIC”

  
	
   

  	
   

  
	
  personally
  appeared

  	
  Margarita
  Hernandez Escontrias

  
	
   

  	
  Name(s) of Signer(s)

  
			



 


who
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 she executed
the same in her authorized capacity, and that by her signature on the
instrument the person, or the entity upon behalf of which the person 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.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Shannyn Daye Henkel

  	
   

  
	
   

  	
  SIGNATURE OF NOTARY

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [SEAL]

  	
   

  



 


 


	
  -OPTIONAL SECTION-

  
	
  CAPACITY
  CLAIMED BY SIGNER

  
	
   

  
	
  Though
  statute does not require the Notary to fill in the date below, doing so may
  prove invaluable to persons relying on the document.

  
	
   

  
	
  o  INDIVIDUAL

  
	
   

  
	
  o  CORPORATE OFFICER(s)

  
	
   

  
	
   

  
	
  TITLE(s)

  
	
   

  
	
  o PARTNERS(S

  	
  o  LIMITED

  
	
  o GENERAL

  	
   

  
	
   

  	
   

  
	
  o ATTORNEY-IN-FACT

  	
   

  
	
   

  	
   

  
	
  o  TRUSTEE(S)

  	
   

  
	
   

  	
   

  
	
  o  GUARDIAN/CONSERVATOR

  	
   

  
	
   

  	
   

  
	
  o  OTHER:

  	
   

  
	
   

  
	
   

  
	
   

  
	
  SIGNER IS
  REPRESENTING

  
	
  NAME OF PERSON(S) OR ENTITY(IES)

  
	
   

  



 


OPTIONAL
SECTION


 


	
  THIS
  CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT:

  	
   

  	
  Title
  or Type of Document:                                              .

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Number of Pages:
       Date of Document:                        .

  
	
  Though
  the data requested here is not required by law, it could

  	
   

  	
   

  
	
  prevent
  fraudulent reattachment of this form.

  	
   

  	
  Signer(s) Other
  Than Named Above:

  



 

















 


EXHIBIT “B”


 


Assigned Interests and Assumed Liabilities


 


(See Attached)


 
















 


EXHIBIT “B” TO SUBAREA “A” PARTIAL ASSIGNMENT OF OWNER 

PARTICIPATION AGREEMENT AND CONSENT TO ASSIGNMENT


 


Supplementary Comments to Assigned Interests


 


The
Assigned Interests and Assumed Obligations shall include any and all rights,
duties and obligations of the Developer under those Sections of the OPA and
those Paragraphs of that certain First Letter Agreement and the Second Letter
Agreement, but only to the extent said Sections relate to, apply to, or involve
the ownership, operation and maintenance of Subarea A and the Subarea A
Improvements:


 


	
  102(a)

  	
   

  	
   

  
	
  103.1

  	
   

  	
  Assumed only to the extent necessary to confirm the
  Agency’s right to pre-approve tenants pursuant to Section 103.1 of the
  OPA shall not apply to residential tenants of Subarea A.

  
	
  103.1(a)

  	
   

  	
  Assumed only to the extent necessary to confirm
  construction of 438 units and associated parking allowed.

  
	
  103.1(e)(l)

  	
   

  	
   

  
	
  103.1(e)(4)

  	
   

  	
  See also Section 6 of the Second Implementation
  Agreement. Assignor assigns to Assignee the unpaid Housing Subsidy for Subarea
  A payable to the Developer by the Agency, which has been calculated by the
  Agency to be $1,988,276.24 per annum in accordance with the calculations set
  forth in Section 103.1(e)(4). The Housing Subsidy is separately
  performed for Subareas A and B-2. The annual payments of the Housing Subsidy
  are scheduled to terminate at the end of Agency Fiscal Year 2028-2029.

  
	
  104

  	
   

  	
   

  
	
  105

  	
   

  	
   

  
	
  106

  	
   

  	
   

  
	
  106.2

  	
   

  	
   

  
	
  Article 2

  	
   

  	
   

  
	
  302

  	
   

  	
   

  
	
  308.1

  	
   

  	
  Assumed only to the extent necessary to confirm the
  representations and warranties and assume the obligations of Developer under
  the second, third and fourth paragraphs only of Section 308.1 of the OPA
  which relate solely to the Assignee Property from and after the Effective
  Date, shall be deemed to have been made and assumed by Assignee only after

  



 


4

















 


	
   

  	
   

  	
  the Effective Date, and Assignor shall have no
  responsibility or liability therefore, except to the extent Assignor made any
  such representations and warranties or assumed any such obligations before
  the Effective Date for which Assignor shall remain solely liable. Further,
  only to the extent it is applicable, Assignee shall assume only (i) the
  right to the Agency’s reimbursement obligation in the fifth paragraph of
  Section 308.1, as it relates to the Assignee Property and (ii) the
  remainder of the fifth paragraph of Section 308.1 only in the event of
  construction by Assignee on the Assignee Property after the Effective Date.

  
	
  308.2

  	
   

  	
   

  
	
  316.1

  	
   

  	
   

  
	
  318.5

  	
   

  	
   

  
	
  319

  	
   

  	
  Assumed only to the extent necessary to confirm the
  Release of Construction Covenants is conclusive evidence of the satisfactory
  Completion of the construction for Subarea A and the termination of all
  construction covenants.

  
	
  509

  	
   

  	
  Assumed only to the extent necessary to confirm that
  the representations and warranties of Developer under Section 509 of the
  OPA which relate only to the use and operation of the Assignee Property by
  the Assignee from and after the date of this Agreement, shall be deemed to
  have been made by Assignee only after the date of this Agreement, and
  Assignor shall have no responsibility or liability therefore, except for
  representations and warranties made by Assignor prior to the date of this
  Agreement for which Assignee shall have no responsibility or liability.

  
	
  601.2

  	
   

  	
  Assumed only to the extent necessary to confirm that
  the Agency has certified the Project Costs which pertain to the annual return
  shortfall and annual agency participation payments.

  
	
  602

  	
   

  	
   

  
	
  603

  	
   

  	
   

  
	
  605.1

  	
   

  	
   

  
	
  605.2

  	
   

  	
   

  
	
  605.3

  	
   

  	
   

  
	
  605.4

  	
   

  	
   

  
	
  702.7

  	
   

  	
   

  



 

















 


	
  801.1.2

  	
   

  	
  Assumed only to the extent it applies to the
  operation and use of the Assignee Property from and after the date of this
  Agreement.

  
	
  801.1.5

  	
   

  	
   

  
	
  801.1.6

  	
   

  	
   

  
	
  801.1.8

  	
   

  	
  Assumed only to the extent necessary to confirm that
  a coordinated Signage Plan may be independently prepared and implemented for
  Subarea A, on the one hand, and Subareas B and C, on the other hand.

  
	
  801.1.10

  	
   

  	
   

  
	
  801.1.11

  	
   

  	
   

  
	
  801.1.12

  	
   

  	
   

  
	
  801.1.14

  	
   

  	
   

  
	
  801.2

  	
   

  	
   

  
	
  802

  	
   

  	
   

  
	
  803.1

  	
   

  	
   

  
	
  803.2

  	
   

  	
   

  
	
  804.2

  	
   

  	
   

  
	
  1001.1

  	
   

  	
   

  
	
  1001.2

  	
   

  	
   

  
	
  1002

  	
   

  	
   

  
	
  1002.1

  	
   

  	
   

  
	
  1002.2

  	
   

  	
   

  
	
  1101 through
  1109

  	
   

  	
   

  
	
  1110

  	
   

  	
  Assignee makes the representations and warranties in
  Paragraphs 1 thru 5 as of the Effective Date only

  
	
  1111 through
  1124

  	
   

  	
   

  
	
  1126

  	
   

  	
   

  
	
  1127

  	
   

  	
  Assignee only assumes this section for purposes of
  establishing the “Date of the Agreement”

  
	
  Attachment
  No. 2

  	
   

  	
   

  
	
  Attachment
  No. 3

  	
   

  	
   

  
	
  Attachment
  No. 8

  	
   

  	
  The payment rights from the Agency in Sections IA,
  IB, ID, IE, VI and VII with respect to Subarea A are assigned to Assignee. In
  addition, the payment rights under Section II with respect to the
  (Affordable Housing Subsidy) with respect to the Restricted Units provided on
  Subarea A are assigned.

  
	
  Attachment
  No. 10

  	
   

  	
   

  
	
  First Implementation Agreement

  	
   

  	
   

  
	
  l.a

  	
   

  	
   

  



 

















 


	
  2.a

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Second Implementation Agreement

  	
   

  	
   

  
	
  1

  	
   

  	
   

  
	
  2

  	
   

  	
   

  
	
  6

  	
   

  	
  See 103. l(e)(4), above. Assignor assigns to
  Assignee the unpaid Housing Subsidy for Subarea A payable to the Developer by
  the Agency, which has been calculated by the Agency to be $1,988,276.24 per
  annum in accordance with the calculations set forth in
  Section 103.1(e)(4). The Housing Subsidy is separately performed for
  Subareas A and B-2. The annual payments of the Housing Subsidy are scheduled
  to terminate at the end of Agency Fiscal Year 2028-2029.

  
	
  17

  	
   

  	
  Assignee only assumes the rights to the credit
  allocated to Subarea A.

  
	
  22

  	
   

  	
  Assignee only assumes the rights to the payments and
  credits under Sections 1.A.2, 1.A.3, and l.B as allocated to Subarea A.

  
	
  23

  	
   

  	
  Assignee only assumes the rights to the credit
  allocated to Sublease A.

  
	
  24

  	
   

  	
   

  
	
  First Letter Agreement

  	
   

  	
   

  
	
  6

  	
   

  	
   

  
	
  7

  	
   

  	
   

  
	
  9

  	
   

  	
   

  
	
  10

  	
   

  	
   

  
	
  Second Letter Agreement

  	
   

  	
   

  



 


Except as otherwise expressly
provided in this Agreement including, without limitation, Sections 4.6 and 4.7,
Assignee acknowledges that it is acquiring the Property subject to the
following covenants and restrictions:


 


1. Agreement Containing
Covenants Affecting Real Property (Affordability Covenants) by and between SF
NO HO, LLC and The Community Redevelopment Agency of the City of Los Angeles
dated December 18, 2003 and recorded against the Property on December 23,
2003 as Instrument No. 03-3851364.


 


2. Grant Deed from The
Community Redevelopment Agency of the City of Los Angeles to SF No Ho, LLC
dated December 19, 2003 and recorded against the Property on December 23,
2003


 

















 


as Instrument No. 03-3851362.


 


3. Agreement Containing
Covenants Affecting Real Property by and between the Community Redevelopment
Agency of the City of Los Angeles and SF No Ho, LLC dated December 19,
2003, recorded against the Property on December 23, 2003 as Instrument No. 03-3851365.


 

















 


EXHIBIT “C” TO SUBAREA “A” PARTIAL ASSIGNMENT OF OWNER
PARTICIPATION

AGREEMENT AND CONSENT TO ASSIGNMENT


 


Retained Obligations


 


	
  101

  	
   

  	
   

  
	
  103.2

  	
   

  	
   

  
	
  107

  	
   

  	
   

  
	
  301

  	
   

  	
   

  
	
  303

  	
   

  	
   

  
	
  303.1

  	
   

  	
   

  
	
  303.2

  	
   

  	
   

  
	
  303.3

  	
   

  	
   

  
	
  303.4

  	
   

  	
   

  
	
  303.5

  	
   

  	
   

  
	
  303.6

  	
   

  	
   

  
	
  304

  	
   

  	
   

  
	
  305

  	
   

  	
   

  
	
  306

  	
   

  	
   

  
	
  306.1

  	
   

  	
   

  
	
  306.2

  	
   

  	
   

  
	
  306.3

  	
   

  	
   

  
	
  306.4

  	
   

  	
   

  
	
  306.5

  	
   

  	
   

  
	
  307

  	
   

  	
   

  
	
  308.1

  	
   

  	
  Paragraphs 1 and 6 only

  
	
  309

  	
   

  	
   

  
	
  310.1

  	
   

  	
   

  
	
  310.2

  	
   

  	
   

  
	
  312

  	
   

  	
   

  
	
  313

  	
   

  	
   

  
	
  314

  	
   

  	
   

  
	
  315

  	
   

  	
   

  
	
  317

  	
   

  	
   

  
	
  318

  	
   

  	
   

  
	
  318.1

  	
   

  	
   

  
	
  318.2

  	
   

  	
   

  



 


1

















 


	
  318.2.1

  	
   

  
	
  318.2.2

  	
   

  
	
  318.2.3

  	
   

  
	
  318.2.4

  	
   

  
	
  318.3

  	
   

  
	
  318.4

  	
   

  
	
  401.2

  	
   

  
	
  401.3

  	
   

  
	
  406.2

  	
   

  
	
  601.1

  	
   

  
	
  701

  	
   

  
	
  702.1

  	
   

  
	
  702.2

  	
   

  
	
  702.3

  	
   

  
	
  702.5

  	
   

  
	
  702.6

  	
   

  
	
  703.1

  	
   

  
	
  703.2

  	
   

  
	
  703.3

  	
   

  
	
  703.4

  	
   

  
	
  703.5

  	
   

  
	
  801.1.1

  	
   

  
	
  801.1.7

  	
   

  
	
  801.1.9

  	
   

  
	
  801.1.13

  	
   

  
	
  804.1

  	
   

  
	
  1002.3

  	
   

  
	
  1003.1

  	
   

  
	
  1004

  	
   

  
	
  1004.1

  	
   

  
	
  1004.2

  	
   

  
	
  1004.3

  	
   

  
	
  1004.4

  	
   

  
	
  1005

  	
   

  
	
  1125

  	
   

  



 


2

















 


	
  Attachment No. 7

  	
   

  	
   

  
	
  Attachment No. 9

  	
   

  	
   

  
	
  Attachment No. 11

  	
   

  	
   

  
	
  Attachment No. 12

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  First Implementation Agreement

  	
   

  	
   

  
	
  3

  	
   

  	
   

  
	
  4

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Second Implementation Agreement

  	
   

  	
   

  
	
  7

  	
   

  	
  Assignee retains only the obligations in the first
  paragraph which were assumed by Assignor

  
	
  9

  	
   

  	
   

  
	
  10

  	
   

  	
   

  
	
  11

  	
   

  	
  See Section 310.1.

  
	
  12

  	
   

  	
   

  
	
  13

  	
   

  	
   

  
	
  16

  	
   

  	
   

  
	
  18

  	
   

  	
   

  
	
  19

  	
   

  	
   

  
	
  21

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Letter Agreement

  	
   

  	
   

  
	
  5

  	
   

  	
   

  
	
  8

  	
   

  	
   

  
	
  9

  	
   

  	
   

  



 


3