Symetra Life Insurance Company Attn: Mortgage Loan Department PO Box 84066 Seattle, WA 98124-8466.Loan # SLAN2051 ESTOPPEL CERTIFICATE This Estoppel Certificate is made with respect to the Amended and Restated Declaration of Covenants and Restrictions Affecting Real Property entered into as of June 16, 2009 (the "Agreement") by and between the Redevelopment Agency of the City of San Jose, a public body and politic, (the "Agency") and Black Sea Gallery Development, LLC, a California limited liability company (the "Owner"), for the benefit of Symetra Life Insurance Company, whose address for mailing notices is 777-108 th Ave NE, Bellevue, Washington 98004-5135 ("Lender"). The Agency hereby certifies to Lender that as of the date of this Certificate, to the best of Agency s knowledge: (i) Owner is in full compliance with the covenants and restrictions and the obligations of Owner contained in the Agreement as they relate to the real property located in San Jose, California and more particularly described in Exhibit "A" attached hereto (the "Property"), (ii) no default of the Agreement has occurred and is continuing after the expiration of anyapplicable notice and cure period specified inthe Agreement and (iii) no act, event or condition has occurred, which with notice or passage of time, or botl~, would constitute a default by Owner under the Agreement. The Agency understands that Lender is about to make a loan to Owner and receive as part of the security for the loan, a Deed of Trust, an Assignment of. Leases and Rents and a Fixture Filing encumbering Owner s interest in the Property and the rents, issues and profits thereof, and Lender is relying upon these statements in making the loan to Owner. Agency will give written notice to Lender at the address set forth above of any default on the part of the Owner under the Agreement and a reasonable opportunity to Cure the default, including obtaining possession of the Property by power of sale or a judicial foreclosure, if Lender has such authority and such a remedy is necessary to effect a cure. Executed this day of,2010 Approved as to form: REDEVELOPMENT AGENCY OF OF THE CITY OF SAN JOSE By:. Title: -1-
EX H I B IT "A" Real Property situated in City of San Jose, County of Santa Clara, State of California, described as follows: BEGINNING AT A POINT ON THE SOUTHWESTERLY LINE OF FIRST STREET DISTANT THEREON S. 30 40 E. 133.50 FEET FROM THE POINT OF INTERSECTION OF SAID SOUTHWESTERLY LINE OF FIRST STREET WITH THE SOUTHEASTERLY LINE OF SANTA CLARA STREET AND FROM WHICH POINT OF BEGINNING A CROSS CUT IN THE SIDEWALK BEARS N. 59 2:~ E. 1.00 FOOT, THENCE FROM SAID POINT OF BEGINNING LEAVING FIRST STREET AND RUNNING S. 59 21 W. 100.42 FEET; THENCE NORTHWESTERLY AND PARALLEL WITH SAID SOUTHWESTERLY LINE OF FIRST STREET, N. 30 40 W. 0.08 OF A FOOT; THENCE S. 59 21 W. 37.17 FEET; THENCE NORTHWESTERLY AT RIGHT ANGLES WITH SAID SOUTHEASTERLY LINE OF SANTA CLARA STREET, N. 30 39 W. 3.49 FEET TO A POINT WHICH IS DISTANT :~30.00 FEET MEASURED AT RIGHT ANGLES SOUTHEASTERLY FROM SAID SOUTHEASTERLY LINE OF SANTA CLARA STREET; THENCE SOUTHWESTERLY AND ALONG A LINE PARALLEL WITH AND DISTANT 130.00 FEET MEASURED AT RIGHT ANGLES SOUTHEASTERLY FROM SAID SOUTHEASTERLY LINE OF SANTA CLARA STREET, S. 59 21 W. 138.63 FEET TO A POINT ON THE NORTHEASTERLY LINE OF LIGHSTON ALLEY FROM WHICH POINT A CROSS CUT IN THE SIDEWALK BEARS S. 59 21 W. 2.00 FEET; THENCE SOUTHEASTERLY ALONG SAID NORTHEASTERLY LINE OF LIGHSTON ALLEY, S. 30 40 45" E. 103.25 FEET TO A POINT FROM WHICH A CROSS CUT IN THE SIDEWALK BEARS S. 59 20 W. 2.00 FEET; THENCE LEAVING LIGHTSTON ALLEY AND RUNNING NORTHEASTERLY AND PARALLEL WITH THE NORTHWESTERLY LINE OF POST STREET, N. 59 20 E. 118.83 FEET; THENCE NORTHWESTERLY AND AT RIGHT ANGLES WITH SAID NORTHWESTERLY LINE OF POST STREET N. 30 40 W. 21.25 FEET; THENCE NORTHEASTERLY AND PARALLEL WITH SAID NORTHWESTERLY LINE OF POST STREET, N. 59 20 E. 157.37 FEETTO A POINT ON SAID SOUTHWESTERLY LINE OF FIRST STREET FROM WHICH POINT A CROSS CUT IN THE SIDEWALK BEARS N. 59 20 E. 1.00 FOOT; THENCE NORTHWESTERLY ALONG SAID SOUTHWESTERLY LINE OF FIRST STREET, N. 30 40 W. 78.35 FEETTO THE POINT OF BEGINNING, AND BEING A PORTION OF BLOCK 1, RANGE 1, NORTH OF THE BASE LINE OF THE CITY OF SAN JOSE, COURSES TRUE. SURVEYED BY ENGINEERING OFFICE OF DON REINOEHL, CONSULTING ENGINEI~R, SAN JOSE, CALIFORNIA. APN: 259-40-043 Street Address: 27 South :~st Street, San Jose, CA 95113-2-
WHEN RECORDED RETURN TO: Symetra Life Insurance Company Mortgage Loan Department PO Box 84066 Seattle, WA 98124-8466 Loan No. SLAN2051 This Space Provided for Recorder s Use APN: 259-40-043 SUBORDINATION AGREEMENT NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR SECURITY INTEREST IN THE PROPERTY BEING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF SOME OTHER SECURITY INSTRUMENT. THIS AGREEMENT is made this 8th day of September, 2010 by BLACK SEA GALLERY DEVELOPMENT, LLC, a California limited liability company, owner of the real property described herein and hereinafter referred to as "Owner", and REDEVELOPMENT AGENCY OF THE CITY OF SAN JOSE, a public body politic, the owner and holder of the deed of trust and note first hereinafter described and hereinafter referred to as "Beneficiary"; WITNESSETH WHEREAS, Owner has executed a Deed of Trust dated June 11,2004 to First American Title Company, a California corporation, as Trustee, for the benefit of Beneficiary, as amended by Amendment to Deed of Trust and Assignment of Rents made June 16, 2009 (together, the "Subordinate Deed of Trust") covering the following described property (the "Property"): (See Exhibit "A" on Page 5 for the full description of the Property) to secure a note in the sum of $500,000.00 dated June 11, 2004 in favor of Beneficiary as amended and restated by the Amended and Restated Promissory Note made June 16, 2009, which Subordinate Deed of Trust was originally recorded under instrument number 17855945 in the records of Santa Clara County, California; and WHEREAS, Owner did execute a Deed of Trust and Assignment of Rents and Real Estate Note (the "Note") in the principal amount of $1,700,000.00 dated,2010, (collectively referred to as the "First Deed of Trust") in favor of Symetra Life Insurance Company, a Washington corporation, hereinafter referred to as ~!Symetra", payable with interest and upon the terms and conditions described therein, which Deed of Trust and Assignment of Leases and Rents shall be recorded concurrently herewith, in the Records of said county (collectively, "Symetra Loan"); and WHEREAS, it is the intent of the parties hereto that the Subordinate Deed of Trust, constitutes a lien or charge upon the Property which shall unconditionally be and remain at all times subordinate and inferior to the lien or charge of the First Deed of Trust. Subordination Agreement 07/04NC -1- Symetra Loan No. SLAN2051
NOW, THEREFORE, in consideration of the mutual benefits accruing to the parties hereto and other valuable consideration, the receipt and sufficiency of which consideration is hereby acknowledged, it is hereby declared, understood and agreed by the parties as follows: 1. The Subordinate Deed of Trust securing the note in favor of Beneficiary, and any renewals, replacements or extensions thereof, shall unconditionally be and remain at all times a lien or charge upon the Property, subordinate and inferior to the lien or charge of the First Deed of Trust in favor of Symetra. 2. Symetra would not consent to the First Deed of Trust without this Subordination Agreement. 3. This Subordination Agreement shall be the whole and only agreement with regard to the subordination of the lien or charge of the Subordinate Deed of Trust to the lien or charge of the First Deed of Trust in favor of Symetra and shall supersede, but only insofar as would affect the priority between the deeds of trust hereinabove specifically described, any prior agreement as to such subordination, including, but not limited to, those provisions, if any, contained in the Subordinate Deed of Trust, which provide for the subordination of the lien or charge thereof to another deed or deeds of trust or to another mortgage or mortgages. Beneficiary declares, agrees and acknowledges that: A. Beneficiary consents to of the Symetra Loan as evidenced by the Real Estate Note, Assignment of Leases and Rents and First Deed of Trust in favor of Symetra; B. Symetra, in making any present or future disbursements secured by the First Deed of Trust, is under no obligation or duty to, nor has Symetra represented that it will, see to the application of any such proceeds by the person or persons to whom Symetra disburses such proceeds and any application or use of the proceeds for purposes other than those provided for in such agreement or agreements shall not defeat the subordination herein made in whole or in part; C. Beneficiary understands that in reliance upon, and in consideration of, this Subordination Agreement, advances are or may be made, monetary and other obligations are or may be undertaken, and forbearances and accommodations are or may be granted, which would not be made, undertaken or granted but for this subordination; and D. Without affecting this Subordination Agreement, Symetra may from time to time (a) agree to change the terms of the First Deed of Trust and the Note which it secures, to renew, extend or change the manner or place of payment; (b) accelerate the maturity of the First Deed of Trust or the Note that it secures; and (c) abstain from taking any action or exercising any dght against the Owner, the Property or any guarantor of Owner s obligations. NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR SECURITY INTEREST IN THE PROPERTY BEING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF SOME OTHER SECURITY INSTRUMENT. Owner: BLACK SEA GALLERY DEVELOPMENT, LLC, a California limited liability company Beneficiary: REDEVELOPMENT AGENCY OF THE CITY OF SAN JOSE, a public body politic By: Nadim S. Bader, Authorized Member By: Title: (all signatures must be notarized) Subordination Agreement 07/04NC. -2- Symetra Loan No. SLAN2051
Symetra: Symetra Life Insurance Company, a Washington corporation By: Colin M. Elder, Vice-President (all signatures must be notarized) STATE OF COUNTY OF On., before me,, Notary Public, personally appeared Nadim S. Bader, 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 OF NOTARY (2008 Form-Califomia) STATE OF COUNTY OF On, before me,, 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 OF NOTARY (2008 Form-California) Subordination Agreement 07/04NC -3- Symetra Loan No. SLAN2051
STATE OF WASHINGTON ) ) SS. COUNTY OF KING ) On, 2010, before me,, a Notary Public in and for said County and State, personally appeared Colin M. Elder, 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(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. WITNESS my hand and official seal. Notary Signature: Residing At: My Commission Expires: Subordination Agreement 07/04NC -4- Symetra Loan No, SLAN2051
EXHIBIT "A" TO SUBORDINATION AGREEMENT (Legal Description) Real Property situated in City of San Jose, County of Santa Clara, State of California, described as follows: BEGINNING AT A POINT ON THE SOUTHWESTERLY LINE OF FIRST STREET DISTANT THEREON S. 30 40 E. 133.50 FEET FROM THE POINT OF INTERSECTION OF SAID SOUTHWESTERLY LINE OF FIRST STREET WITH THE SOUTHEASTERLY LINE OF SANTA CLARA STREET AND FROM WHICH POINT OF BEGINNING A CROSS CUT IN THE SIDEWALK BEARS N. 59 21 E. 1.00 FOOT, THENCE FROM SAID POINT OF BEGINNING LEAVING FIRST STREET AND RUNNING S. 59 21 W. 100.42 FEET; THENCE NORTHWESTERLY AND PARALLEL WITH SAID SOUTHWESTERLY LINE OF FIRST STREET, N. 30 40 W. 0.08 OF A FOOT; THENCE S. 59 21 W. 37.17 FEET; THENCE NORTHWESTERLY AT RIGHT ANGLES WITH SAID SOUTHEASTERLY LINE OF SANTA CLARA STREET, N. 30 39 W. 3.49 FEET TO A POINT WHICH IS DISTANT 130.00 FEET MEASURED AT RIGHT ANGLES SOUTHEASTERLY FROM SAID SOUTHEASTERLY LINE OF SANTA CLARA STREET; THENCE SOUTHWESTERLY AND ALONG A LINE PARALLEL WITH AND DISTANT 130.00 FEET MEASURED AT RIGHT ANGLES SOUTHEASTERLY FROM SAID SOUTHEASTERLY LINE OF SANTA CLARA STREET, S. 59 21 W. 138.63 FEET TO A POINT ON THE NORTHEASTERLY LINE OF LIGHSTON ALLEY FROM WHICH POINT A CROSS CUT IN THE SIDEWALK BEARS S. 59 21 W. 2.00 FEET; THENCE SOUTHEASTERLY ALONG SAID NORTHEASTERLY LINE OF LIGHSTON ALLEY, S. 30 40 45" E. 103.25 FEET TO A POINT FROM WHICH A CROSS CUT IN THE SIDEWALK BEARS S. 59 20 W. 2.00 FEET; THENCE LEAVING LIGHTSTON ALLEY AND RUNNING NORTHEASTERLY AND PARALLEL W1TH THE NORTHWESTERLY LINE OF POST STREET, N. 59 20 E. 118.83 FEET; THENCE NORTHWESTERLY AND AT RIGHT ANGLES WITH SAID NORTHWESTERLY LINE OF POST STREET N. 30 40 W. 21.25 FEET; THENCE NORTHEASTERLY AND PARALLEL WITH SAID NORTHWESTERLY LINE OF POST STREET, N. 59 20 E. 157.37 FEET TO A POINT ON SAID SOUTHWESTERLY LINE OF FIRST STREET FROM WHICH POINT A CROSS CUT IN THE SIDEWALK BEARS N. 59 20 E. 1.00 FOOT; THENCE NORTHWESTERLY ALONG SAID SOUTHWESTERLY LINE OF FIRST STREET, N. 30 40 W. 78.35 FEETTO THE POINT OF BEGINNING, AND BEING A PORTION OF BLOCK 1, RANGE 1, NORTH OF THE BASE LINE OF THE CITY OF SAN JOSE, COURSES TRUE. SURVEYED BY ENGINEERING OFFICE OF DON REINOEHL, CONSULTING ENGINEER, SAN JOSE, CALIFORNIA. APN: 259-40-043 Street Address: 27 Southlst Street, San Jose, CA 95113 Subordination Agreement 07104NC -5- Symetra Loan No. SLAN2051