HomeMy WebLinkAbout1998-126
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RESOLUTION NO. 98-126
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO ACKNOWLEDGING AND ACCEPTING THE
ASSUMPTION BY EL CORTE INGLES, S.A., OF THE OBLIGATIONS
OF THE HARRIS COMPANY TO THE CITY OF SAN BERNARDINO
WHICH ARISE UNDER THE COMMUNITY DEVELOPMENT BLOCK GRANT
PROGRAM LOANS KNOWN AS THE 1995 FLOAT LOAN AGREEMENT
(HARRIS COMPANY) AND THE 1995 CITY SECTION 108 LOAN
AGREEMENT (HARRIS COMPANY), AND APPROVING THE FORM OF
A 1998 CITY OF SAN BERNARDINO ASSIGNMENT AND LOAN
ASSUMPTION AGREEMENT (1995 HUD SECTION 108 LOAN
AGREEMENT) AND AUTHORIZING THE MAYOR AND CITY CLERK TO
EXECUTE CERTAIN INSTRUMENTS ON BEHALF OF THE CITY OF
SAN BERNARDINO
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WHEREAS, the City of San Bernardino, a municipal
corporation (the "City") has previously entered into two (2)
separate Community Development Block Grant Program (herein
"CDBG") loan agreements with The Harris Company, a California
corporation, which are identified as follows:
(i) $3,150,000.00 Float Loan Agreement, dated as of
January 30, 1995 (herein the "1995 Float Loan
Agreement"); and
(ii) $7,350,000.00 City Section 108 Loan Agreement,
dated as of May 4, 1995 (herein the "1995 City
Section 108 Loan Agreement"); and
WHEREAS, the City obtained the funds which were
disbursed to The Harris Company under Recital subparagraph (ii),
above, pursuant to an agreement entitled "Contract for Loan
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98-126
Guarantee Assistance under Section 108 of the Housing and
Community Development Act of 1974, as amended, 42 U.S.C. Section I
5308," as later superseded by a contract by and between the
United States Secretary of Housing and Urban Development and the
City for loan guarantee assistance (B-94-MC-06-0539), dated June
5, 1996 (collectively the ~1995 HUD Section 108 Loan"); and
WHEREAS, The Harris Company used the proceeds of the
funds disbursed by the City under the 1995 Float Loan Agreement
and the 1995 City Section 108 Loan Agreement to acquire the
property and improvements, commonly known as the ~Harris
Department Store",
300 North ~E" Street,
San Bernardino,
California 92416 (the ~Property") and to pay for other CDBG
eligible costs incurred by The Harris Company in connection with
the acquisition and economic revitalization of the Property; and
WHEREAS, The Harris Company proposes to convey all of
its right, title, and interest in the Property to E1 Corte
Ingles, S .A., a Spanish corporation (herein ~ECI"), subject to
the security interests of the City in the Property under the 1995
City Section 108 Loan Agreement, and ECI proposes to acquire the
Property from The Harris Company, and concurrently therewith, ECI
shall grant a long-term commercial lease possessory interest in
the Property to The Harris Company as the tenant of ECI; and
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98-126
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WHEREAS, the collateral and security interests granted
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to the City by The Harris Company in the Property to secure
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repayment of the 1995 City Section 108 Loan Agreement has, in
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turn, been assigned by the City to the City CDBG Program Section
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108 Loan Repayment Account and the Secretary of the United States
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Department of Housing and Urban Development under the 1995 HUD
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Section 108 Loan; and
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WHEREAS, ECI and The Harris Company have requested that
the City consent to the proposed transfer of the fee interest of
The Harris Company in the Property to ECI, and ECI and The Harris
Company have also requested the City to accept ECI as the
successor of The Harris Company and sole obligor under: (i) that
certain $3,150,000.00 promissory note dated January 30, 1995,
executed by The Harris Company in favor of the City pursuant to
the 1995 Float Loan Agreement (the "1995 Float Loan Note"); and
(ii) that certain $7,350,000.00 promissory note and deed of
trust, each dated April 21, 1995, executed by The Harris Company
in favor of the City pursuant to the 1995 City Section 108 Loan
(the "1995 City Section 108 Note and Deed of Trust") .
NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE
25 CITY OF SAN BERNARDINO, DOES HEREBY RESOLVE, DETERMINE AND ORDER
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98-126
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Section 1.
The Council hereby acknowledges receipt
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of the following documents and instruments from ECI and The
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Harris Company as on file with the City Clerk:
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(a) 1998 City of San Bernardino Assignment and Loan
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Assumption Agreement
(1995 HUD Section 108 Loan
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Agreement) ;
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(b) Store Lease, dated as of May 2, 1998, by and
between El Corte Ingles, S.A., and The Harris Company;
(c) Agreement
for the Acquisition of
the San
Bernardino Store by El Corte Ingles, S.A., effective
May 2, 1998;
(d) Grant of Authorization (El Corte Ingles, S.A.),
dated April 15, 1998; and
(e) Most
available
Financial
Audited
currently
Statement of El Corte Ingles, S.A., presented to the
City in April 1998.
Section 2.
The Council hereby finds and determines
that the assumption by ECI of the obligations of The Harris
Company to the City which arise under the 1995 Float Loan
Agreement and the 1995 City Section 108 Loan Agreement, is
consistent with the achievement of the City CDBG Program goals
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98-126
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and objectives under both the 1995 Float Loan Agreement and the
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1995 City Section 108 Loan Agreement, and that Section 5.3 of the
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Store Lease, dated as of May 2, 1998, by and between ECl and The
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Harris Company, contains provisions which assure the City that
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there shall be continuing compliance by The Harris Company as the
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tenant of ECl from and after the date on which ECl assumes the
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obligations of The Harris Company, with the original City CDBG
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Program goals and objectives under each of the 1995 financings
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referenced in the recitals of this Resolution.
Section 3.
The Council hereby approves the form of
the 1998 City of San Bernardino Assignment and Loan Assumption
Agreement (1995 HUD Section 108 Loan Agreement), in the form as
presented at this meeting.
The Mayor and the City Clerk are
hereby authorized and directed to execute the 1998 City of San
Bernardino Assignment and Loan Assumption Agreement (1995 HUD
Section 108 Loan Agreement) on behalf of the City, subject to
receipt, confirmation or satisfaction of the following:
(i)
confirmation of receipt of approving legal
opinions of counsel for ECl and counsel for The
Harris Company, each addressed to the City, which
evidence that the representations and warranties
of ECl and The Harris Company contained in the
documents
described in Section
this
1
of
Resolution are, to the best knowledge of legal
counsel, true and correct, and that the delivery
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(ii)
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and execution of each of the documents referenced
in Section 1 and Section 3(iv) of this Resolution
in connection with the approval and recordation
of the 1998 City of San Bernardino Assignment and
Loan Assumption Agreement, are duly and validly
executed, that each is a valid, lawful and
enforceable obligations of ECI and The Harris
Company, as applicable;
confirmation of receipt by the Director of the
Development Department of either: (i) a written
acknowledgment signed by authorized officers of
Bank of America, NTSA, confirming that Bank of
America Irrevocable Letter of Credit No. LASB-
223140, dated January 30, 1995, has been duly
assigned by The Harris Company to ECI and that
Bank of America shall continue to honor drafts of
the City drawn under the letter of credit for the
obligation of The Harris Company as assumed by
ECI; or (ii) a substitute irrevocable letter of
credit in favor of the City issued by another
qualified bank to secure the obligation under
Section 5 of the 1995 Float Loan Agreement in the
principal amount and form and substance as
required by Section 5 of the 1995 Float Loan
Agreement;
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98-126
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(iii)
confirmation by the Director of the Development
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Department that concurrently upon the execution
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and delivery by the City of the fully executed
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form of
the
City of
San Bernardino
1998
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Assignment and Loan Assumption Agreement (1995
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HUD Section 108 Loan Agreement) Chicago Title
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Insurance Company, shall at no cost to the City,
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shall issue an appropriate endorsement (e. g. ,
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CLTA Endorsement Nos. 110.5 and/or 111. 4) to
Chicago Title Insurance Company Policy of Title
Insurance No. 9512234-15, dated April 25, 1995,
in favor of the City, based upon a title proforma
for the subject property in form otherwise
satisfactory to the Director of the Development
Department at the time of recordation of the 1998
City of San Bernardino Assignment and Loan
Assumption Agreement (1995 HUD Section 108 Loan
Agreement) ;
(iv) confirmation of receipt of all other documents,
instruments, certificates or receipts in fully
executed form, as may be required by the Director
of the Development Department in order to
consummate this transaction.
Section 4.
This Resolution shall take effect upon
the date of its adoption.
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98-126
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I HEREBY CERTIFY that the foregoing Resolution was duly
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adopted by the Mayor and Common Council of the City of
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San Bernardino at a joint regular
meeting
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thereof, held on the
18th
May
day of
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1998, by the following vote, to wit:
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Council:
ESTRADA
LIEN
ARIAS
SCHNETZ
DEVLIN
ANDERSON
MILLER
ABSTAIN
8
AYES
x
x
x
NAYS
ABSENT
I)
x
x
x
x
JMdJri1JIW dl/){u.lu{JL~
City Clerk 'I (J'
day of
The
May
foregoing resolution is hereby approved this Ir/~
, 1998.
of
20 By:
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98-126
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STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
CITY OF SAN BERNARDINO
ss
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I, City Clerk of the City of
San Bernardino, DO HEREBY CERTIFY that the foregoing and attached
copy of Mayor and Common Council of the City of San Bernardino
Resolution No. is a full, true and correct copy of that
now on file in this office.
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IN WITNESS WHEREOF, I
affixed the official seal of the
City of San Bernardino this
1998.
have hereunto set my hand
Mayor and Common Council of
day of
and
the
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City Clerk
City of San Bernardino
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EXHIBIT "A"
1998 CITY OF SAN BERNARDINO ASSIGNMENT
AND LOAN ASSUMPTION AGREEMENT
(1995 HUD SECTION 108 LOAN AGREEMENT:
THE HARRIS COMPANY)
98-126
Los ANGELES OFFICE
SABO & GREEN
ATTORNEYS A T LAW
A PROFESSIONAL CORPORA nON
20 I NORTH "E" STREET
Sum 206
SAN BERNARDINO, CALIFORNIA 9240 1
(909) 383.9373
FAX (909) 383-9378
COACHELLA VALLEY OmCE
23801 CALASASAS ROAD
SUITE 1015
CALABASAS. CALIFORNIA 91302
(818)704-0195
FAX (818)704-4729
35-325 DATE PALM DRIVE
SUITE 232
CATHEDRAL CITY, CALIFORNIA 92234
(760) 770-0873
FAX (760) 770-1724
MEMORANDUM
DATE:
June 3, 1998
~ ::;:;
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TO:
Honorable Mayor Judith Valles
City of San Bernardino
FROM:
Timothy J. Sabo, Special Agency Counsel
to The Redevelopment Agency of The
City of San Bernardino
RE:
DELIVERY OF FINAL AND EXECUTABLE FORM OF THE 1998 CITY OF
SAN BERNARDINO ASSIGNMENT AND LOAN ASSUMPTION AGREEMENT
(1995 HUD SECTION 108 LOAN AGREEMENT) THE HARRIS
COMPANY AND EL CORTE INGLES, S.A.
On May 18, 1998, the Mayor and Common Council adopted
Resolution No. 98-126, which approved the 1998 City of San
Bernardino Assignment and Loan Assumption Agreement (1995 HUD
Section 108 Loan Agreement) by and among The Harris Company, El
Corte Ingles, S.A., and the City.
Resolution No. 98-126 authorizes the Mayor and City Clerk
to execute the final form of the Assignment and Loan Assumption
Agreement on behalf of the City upon confirmation of receipt by the
Director of the Development Department of certain legal opinions
'from The Harris Company and El Corte Ingles, S.A., and an amendment
to the 1995 Bank of America Letter of Credit. I am informed that on
May 29, 1998, the Economic Development Department received an
original copy of Bank of America Amendment No. 1 to its Irrevocable
Letter of Credit No. LASB-223l40.
98-126
Honorable Mayor Judith Valles
June 3, 1998
Page 2
Accordingly, the conditions of Resolution No. 98-126
relating to the execution of the Assignment and Loan Assumption
Agreement by the City have been satisfied, and the Mayor and the
City Clerk may execute the Assignment and Loan Assumption Agreement
on page 8 of the document as clipped in the set of documents which
accompany this memorandum. The date of the signature of the Mayor
should also be added by handwritten notation next to her signature
at the place indicated. Please also note that the signatures of
both the Mayor and the City Clerk need to be accompanied by a
notary certification.
Upon execution of the Assignment and Loan Assumption
Agreement by both the Mayor and the City Clerk, please contact
Ms. Alva Huertas with this office at (909) 383-9373. Ms. Huertas
will arrange for the fully executed original form of the Assignment
and Loan Assumption Agreement to be transmitted by messenger to
Chicago Title Insurance Company for recordation and the issuance by
the title insurance company of the CLTA Form 111.4 endorsement to
the City's 1995 policy of title insurance affecting the subject
Harris Store property.
Transmitted under the cover of this memorandum are the
following documents for your reference and files relating to this
transaction:
.
1998 City
Assumption
Agreement)
of San
Agreement
Bernardino Assignment
(1995 HUD Section
and
108
Loan
Loan
[ORIGINAL DOCUMENT FOR EXECUTION BY THE CITY];
.
Opinion of Legal Counsel for The Harris Company addressed
to the City of San Bernardino, dated May 18, 1998
[COPY: ORIGINAL OPINION ON FILE WITH EDA];
.
Opinion of Legal Counsel to El Corte Ingles, S.A., dated
May 18, 1998
[COPY: ORIGINAL OPINION ON FILE WITH EDA];
98-126
Honorable Mayor Judith Valles
June 3, 1998
Page 3
.
Bank of America Amendment No. 1 to its Irrevocable Letter
of Credit No. LASB-223140, dated May 28, 1998, together
with January 30, 1995 letter of credit and copy of
related Bank of America correspondence, dated May 21,
1998
[COPY: ORIGINAL ON FILE WITH EDA];
.
Lease between El Corte Ingles, S.A. and The Harris
Company, dated as of May 2, 1998
[COPY ON FILE WITH EDA];
.
Agreement for Acquisition of the San Bernardino Store by
El Corte Ingles, S.A., effective May 2, 1998
[COPY ON FILE WITH EDA];
.
Grant of Authority (El Corte Ingles, S.A.), dated
April 15, 1998
[COPY ON FILE WITH EDA];
.
Resolution No. 98-126 of the Mayor and Common Council of
the City of San Bernardino, dated May 18, 1998.
If you have any question relating to this matter, please
contact me.
TJS:ah
(Enclosures)
SBEO\OOOl\MEM\397
cc: James F. Penman, City Attorney
Huston T. Carlyle, Jr., Assistant City Attorney
Ronald E. Winkler, Director of the Development Department
,-
,
98-126
RECORDING REQUESTED BY:
Timothy 1. Sabo, Esq.
Sabo & Green
Attorneys at Law
201 North "E" Street, Suite 206
San Bernardino, CA 92401
WHEN RECORDED MAIL TO:
Timothy 1. Sabo, Esq.
Sabo & Green
Attorneys at Law
201 North "E" Street, Suite 206
San Bernardino, CA 92401
THIS SPACE FOR RECORDER'S USE ONL Y
1998
CITY OF SAN BERNARDINO
ASSIGNMENT AND LOAN ASSUMPTION AGREEMENT
(1995 HUD SECTION 108 LOAN AGREEMENT)
THIS ASSIGNMENT AND LOAN ASSUMPTION AGREEMENT (1995 HUD Section 108
Loan Agreement: The Harris Company) is dated as of May 18, 1998 (the "CDBG Loan Assumption
Agreement") by and among The Harris Company, a California corporation (herein "The Harris
Company"), EI Corte Ingles, S.A., a Spanish corporation (herein "ECI") and the City of San
Bernardino, a municipal corporation (the "City") and is entered into with respect to the following
facts:
RECIT ALS
A. The Harris Company has previously entered into two (2) separate loan agreements with
the City, which are identified as follows:
(i) a $7,350,000.00 City Section 108 Loan Agreement, dated as of May 4,1995 (herein the
"1995 City Section 108 Loan Agreement"); and
(ii) a $3,150,00000 Float Loan Agreement, dated as ofJanuary 30, 1995 (herein the "1995
Float Loan Agreement")
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98-126
B. The City has previously entered into an agreement entitled: "Contract for Loan Guarantee
Assistance under Section 108 of the Housing and Community Development Act of1974, as amended,
42 U.S.c. Section 5308", as later superseded by a contract by and between the United States
Secretary of Housing and Urban Development and the City for loan guarantee assistance (B-94-MC-
06-0539), dated June 5, 1996 (collectively the "1995 HOD Section 108 Loan Agreement")
C. The Harris Company used the proceeds of the funds disbursed to it by the City under the
1995 City Section 108 Loan Agreement and the 1995 Float Loan Agreement to acquire the property
and improvements commonly known as the Harris Department Store, 300 North "E" Street, San
Bernardino, California 92416 (herein the "Property") to pay for certain other CDBG eligible costs
incurred in connection with the acquisition of the Property.
D. The Harris Company proposes to convey all of its right, title, and interest in the Property
to ECI, subject to the security interests of the City in the Property under the 1995 City Section 108
Loan Agreement, and concurrently therewith ECl shall grant a long-term commercial lease interest
in the Property to The Harris Company as the tenant ofECl.
E. The City has previously pledged the collateral and security granted by The Harris
Company in the Property to the City under the 1995 City Section 108 Loan Agreement to secure the
repayment by the City of the funds obtained by the City under the terms of the 1995 HOD Section
108 Loan Agreement.
F. The Harris Company and ECl have requested that the City consent to the proposed
transfer offee interest of The Harris Company in the Property to ECI, and, specifically, to accept ECl
as the successor and sole obligor under (i) that certain $7,350,00000 promissory note, dated April
21, 1995, and, the deed of trust. dated April 21, 1995, executed by The Harris Company in favor of
the City pursuant to the 1995 City Section 108 Loan Agreement, and, recorded on April 25, 1995
Instrument No. 95-129260 in the Official Records of San Bernardino County (herein the" 1995 City
Section 108 Note and Deed of Trust"), and (ii) that certain $3,150,000 promissory note dated
January 30, 1995 and executed by The Harris Company (herein the "1995 Float Loan Note")
IN CONSIDERATION OF THE COVENANTS AND PROMISES OF THE PARTIES AND
THE CONSENT OF THE CITY TO THE TRANSFER OF THE PROPERTY TO ECl AND THE
ASSUMPTION BY ECl OF THE 1995 CITY SECTION 108 LOAN AGREEMENT AND THE
1995 FLOAT LOAN AGREEMENT, THE PARTIES HEREBY AGREE AS FOLLOWS
Section 1.
(a) The text of the 1995 City Section 108 Loan Agreement is incorporated into this
CDBG Loan Assumption Agreement by this reference
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98-126
(b) The Harris Company and ECr acknowledge that the 1995 City Section 108 Loan
Agreement and the 1995 City Section 108 Note and Deed of Trust are in full force and effect and are
enforceable by the City in accordance with their terms.
(c) City acknowledges that it has not declared the existence ofa default or breach
by The Harris Company under the 1995 City Section 108 Loan Agreement.
Section 2.
(a) The text ofthe 1995 Float Loan Agreement is incorporated into this CDBG Loan
Assumption Agreement by this reference.
(b) The Harris Company and ECr acknowledge that the 1995 Float Loan Agreement
and the 1995 Float Loan Note are in full force and effect and are enforceable by the City in
accordance with their terms.
( c) City acknowledges that it has not declared the existence of a default or breach by
The Harris Company under the 1995 Float Loan Agreement.
(d) The Harris Company and ECr represent and warrant to the City that no material
default or breach exists under the terms of any agreement with the Bank of America, who has issued
its Letter of Credit in favor of the City under and in accordance with the 1995 Float Loan Agreement.
Section 3.
(a) ECr hereby assumes the obligation of The Harris Company to pay principal and
interest, and promises to pay to the City, or to any holder in due course, when due the 1995 City
Section 108 Note and Deed of Trust (and any renewals and extensions thereof)
(b) ECl hereby agrees to assume and perform all of the obligations and covenants in
favor of the City under the 1995 City Section 108 Note and Deed of Trust and the 1995 City Section
108 Loan Agreement. ECI agrees to be and shall be considered by the City, and any holder in due
course, as an original obligor under the 1995 City Section 108 Note and Deed of Trust, as if executed
by Ecr instead of The Harris Company.
(c) ECr does hereby waive the right in an "Event of Default" or breach under the
1995 City Section 108 Loan Agreement, or the 1995 City Section 108 Note and Deed of Trust to
require either the City or the holder of the 1995 City Section 108 Note and Deed of Trust, to proceed
against The Harris Company or to pursue any other remedy in the power of the City or such holder
thereunder.
(d) The assumption by ECr of the obligations ofThe Harris Company shall constitute
a release ofliability ofThe Harris Company to the City, except the obligations provided in Paragraph
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98-126
9 of the 1995 City Section 108 Loan Agreement, and the City may pursue all remedies in its power
against ECI following a default or breach under the 1995 City Section 108 Note and Deed of Trust,
independently of the pursuit of any remedy of the City against The Harris Company for such default
or breach.
Section 4.
(a) ECI hereby agrees to assume the obligation of The Harris Company to pay
principal and interest, and promises to pay the City, or to any holder in due course, when due the
1995 Float Loan Note (and any renewals and extensions thereot).
(b) ECI shall deliver to the City concurrently with the execution of this CDBG Loan
Assumption Agreement a Letter of Credit issued by a bank acceptable to City in favor of the City,
in an amount sufficient to secure the obligation under Section 5 of the 1995 Float Loan Agreement,
and otherwise which satisfies the requirements of Section 5 of the 1995 Float Loan Agreement.
(c) The Harris Company, by execution of this CDBG Loan Assumption Agreement,
hereby releases and assigns to ECI all of its right, title and interest in the balance of that certain
sinking fund account established by the City under Section 5 of the 1995 Float Loan Agreement.
Section 5.
(a) All rental and other sums payable to ECI by The Harris Company under the tenns
of the lease affecting the property (the "Department Store Lease") shall be subject to the ttrms and
provisions of the Deed of Trust With Assignment of Rents recorded as No. 95-129260, April 25,
1995, Official Records of San Bernardino County.
(b) The form of the Department Store Lease shall be subject to the review and
approval of the City and shall contain certain covenants of the parties for the benefit of the City as
necessary or appropriate under the terms of the 1995 City Section 108 Loan Agreement, shall be
executed by ECI and The Harris Company and have a commencement date which corresponds with
the acquisition of title by ECL
Section 6.
(a) The Harris Company hereby represents and warrants to the City that, based upon
due and diligent inquiry by officers of The Harris Company, there are no facts now in existence which
would, with the giving of notice or the lapse of time or both, constitute an "Event of Default" under
(i) Section 14 of the 1995 City Section 108 Loan Agreement and the 1995 City Section 108 Note
and Deed of Trust or (ii) Section 16 of the 1995 Float Loan Agreement and the 1995 Float Loan
Note.
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98-126
(b) The Harris Company hereby represents and warrants to the City, that the
execution and performance by The Harris Company of this CDBG Loan Assumption Agreement, and
the documents contemplated hereunder, do not violate and are not restricted by any other agreement,
contractual obligation, court order, or law to which The Harris Company is a party or is bound.
( c) The Harris Company hereby represents and warrants to the City that all action
necessary to authorize the execution and delivery of this CDBG Loan Assumption Agreement has
been taken.
Section 7.
(a) ECI hereby represents and warrants to the City that it has taken all action
necessary to authorize the execution and delivery of this CDBG Loan Assumption Agreement.
(b) ECI hereby represents and warrants to the City that this Loan Assumption
Agreement, the execution and performance by ECI of this CDSG Loan Assumption Agreement and
the documents contemplated hereunder does not violate and is not restricted by any other agreement,
contractual obligation, court order or law to which ECI is a party or is bound
(c) ECI hereby represents and warrants to the City that ECI (and not a subsidiary
corporation or a limited partnership or other related entity to ECI) shall acquire the Property and shall
be the lessor under the Department Store Lease and thereafter retain ownership of the Property,
subject only to the Department Store Lease and other permitted exceptions to title described
elsewhere herein at all times that (i) any amount of the loan assumed by ECI under the 1995 City
Section 108 Loan Agreement is outstanding and (ii) any amount of the loan assumed b ECI under the
1995 Float Loan Agreement is outstanding.
Section 8.
(a) The consent of the City to the transfer of the interest of The Harris Company in
the Property to ECI and the acceptance by the City of the assignment and assumption of the
performance of the obligations of The Harris Company in favor of the City by ECI shall be expressly
subject to the satisfaction of the following conditions
(i) the execution of the CDSG Loan Assumption Agreement by The Harris
Company and by ECI;
(ii) approval by the City of the final form of the Department Store Lease and
any other documents that maybe required herein;
(iii) delivery to the City of fully executed original documents as required by
City.
5
98-126
(b) The Harris Company and ECI each acknowledge and agree that the consent of
the City to the transfer of the interest of The Harris Company in the Property to ECI may be subject
to certain additional programmatic limitations as directed by the United States Secretary of Housing
and Urban Development under the terms of the 1995 HUD Section 108 Loan. In the event that the
satisfaction of any condition that may be thus required may be constitute a material modification or
amendment of this CDBG Loan Assignment and Assumption Agreement by the parties hereto, the
City expressly reserves the right in its sole and absolute discretion to accept or reject any such
modification or amendment by separate action of the Mayor and Common Council.
Section 9.
(a) ECI shall be deemed to be a party to the 1995 City Section 108 Loan Agreement
and the Note and Deed of Trust, and the "Borrower" thereunder, as this term is used therein;
provided however that certain obligations and covenants of the Borrower in favor of the City shall
be qualified or amended as specifically set forth herein.
(b) Certain provisions of the 1995 City Section 108 Loan Agreement are hereby
amended as set forth herein in order to confonn certain obligations of ECI as a party thereto in light
of its assumption of the obligations of The Harris Company thereunder:
(i) from and after the acquisition of title, The Harris Company shall be
relieved of its obligation to comply with the covenant of the Borrower
under Section 8 [Years I to 20:] (d) thereof, provided however that from
and after the acquisition of title, ECI shall continuously satisfY the
covenant and further provided that a breach of the covenant by ECI shall
be deemed an Event of Default under Section 14 of the 1995 City Section
108 Loan Agreement;
(ii) the covenant of the Borrower in Section 8 [Years 1 to 3: through Years
4 to 10: inclusive] thereof shall mean and refer to the operation covenant
of The Harris Company in the Department Store Lease; provided
however that a breach of the covenant under the Department Store Lease
shall also be deemed an Event of Default under Section 14 of the 1995
City Section 108 Loan Agreement;
(iii) the covenant of the Borrower in Section 9(B) thereof shall mean and
refer to the jobs and employment covenant of The Harris Company in the
Department Store Lease; provided however that a breach of such
covenant of the Harris Company shall also be deemed an Event of
Default under Section 14 of the 1995 City Section 108 Loan Agreement,
(iv) Section 12 thereofis hereby amended by adding a third paragraph of text
thereto which reads as follows
6
98-126
"From and after the acquisition of title as more fully set forth in that
certain Assignment and Loan Assumption Agreement (1995 HUD
Section 108 Loan Agreement: The Harris Company) dated as of May
4,1998, by and among The Harris Company, El Corte Ingles, a Spanish
corporation and the City, the interest of The Harris Company in the
Department Store Lease shall not be assigned in whole or in part or
otherwise modified in any material respect without the prior written
consent of the City and any such purported assignment of interest shall
constitute a material breach of this Agreement and the City may at its
option, declare the entire principal balance of the Loan and all accrued
and unpaid interest thereon immediately due and payable".
Section 10.
(a) This CDBG Loan Assumption Agreement, and any documents that are referenced
herein, or are otherwise a part of the transaction contemplated herein, will be interpreted and
construed under the internal laws of the State of California regardless of the domicile of any party,
and will be deemed for such purposes to have been made, executed and performed in the State of
California, and all claims, disputes and other matters in question arising out of or thereunder or
related to, or the breach thereof, will be decided by proceedings instituted in a court of competent
jurisdiction siting in San Bernardino County, State of California, or the United States District Court
for the Central District of California. Each of the parties consent to the jurisdiction of the courts
referenced in this Section 10 with respect to any all action or actions that may be brought hereunder.
(b) During the term of the 1995 City Section 108 Loan Agreement and the 1995
Float Loan Agreement, ECI shall appoint and maintain an Agent for Service of Process in California.
ECI acknowledges and represents that it has appointed McPeters McAJearney Shimoff & Hatt, a
Professional corporation, 4 W Redlands Boulevard, 20d Floor, Redlands, CA 92373, as its Agent for
Service of Process in connection with this CDBG Loan Assumption Agreement, and, any documents
that are referenced herein, or are otherwise a part of the transaction contemplated herein, and, that
service upon that firm will constitute personal service upon it for all purposes under law, including,
conferring jurisdiction over and with respect to it upon the court in which the action is commenced
and to which the service of summons relates. ECI shall not change the identity of its Agent for
Service of Process after the date of this CDBG Loan Assumption Agreement without first providing
the City with thirty (30) days Notice, and, in such Notice, ECI will identify the Successor Agent for
Service of Process
THE PARTIES HAVE EXECUTED THIS CDBG LOAN ASSUNIPTION
AGREEMENT as of the date indicated next to the signature of the officers of each; provided
however that the date of approval hereof shall be the date on which the officers of the City executed
this CDBG Loan Assumption Agreement.
SIGNATURE PROVISIONS ON FOLLOWING PAGE
7
98-126
Dated:
May 18, 1998.
Dated:
May 18, 1998.
"
Dated: ~, 1998.
ATTEST:
City Clerk of the City of San Bernardino
"THE HARRIS COl\fPANY"
The Harris Company, a California corporation
,/ .
~t.-<--b( J~ :JA~
Leopolda Del Nogal
President and Chief Executive Officer
1<,~
By:
By:
Thomas H. McPeters
Secretary
"ECI"
EI Corte Ingles, S.A, a Spanish corporation
By ~ ~~"'~
Leopoldo Del Nogal
By
~~~
Thomas H. McPeters
"CITY"'
City of San Bernardino, a municipal corporation
By
-&:c~/~
8
98-126
STATE OF CALIFORNIA
)
: ss
COUNTY OF SAN BERNARDINO )
On this 18th day of May, 1998, before me, Marcia L. Peterson, a Notary Public in and for said
County and State, personally appeared Leopoldo Del Nogal, known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name(s) 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
WITNESS my hand and official seal.
Public in and for said County and State
t@~:., ............., MARCIA L: PE~ERS.~N .,
.. . .
:!!;'I;": : COMM. #1094127 ;2
Z NOTARY PUBLIC. CALIFORNIA s:
- ...,,;..' SAN BERNARDINO COUNTY ...
to. .MY commi~Slon ~X~ires April . ~ 4. ~DOO J
STATE OF CALIFORNIA
)
: ss
COUNTY OF SAN BERNARDINO )
On this 18th day of May, 1998, before me, Marcia L. Peterson, a Notary Public in and for said
County and State, personally appeared Thomas H. McPeters, 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 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
WITNESS my hand and official seal.
Public in and for said County and State
tfj MA';" ~,,,,,;..;. I
~. ~ -
:!!. "..: COMM. #1094127 Z
z' - . NOTARY PUBLIC. CALIFORNIA s:
- '",..:., SAN BERNARDINO COUNTY ...
I. My com,mi~Slon. ExpIres A~ri~.~ 4. 2000 J
9
98-126
STATE OF CALIFORNIA
)
: ss
COUNTY OF SAN BERNARDINO )
On this 18th day of May, 1998, before me, Marcia L. Peterson, a Notary Public in and for said
County and State, personally appeared Leopoldo Del Nogal, known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name(s) 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.
WITNESS my hand and official seal.
f@,..'.-.... 'MARCI~'L. P~~~~ON .,
.. . .
:!! h. - COMM. #1094127 2:
2 'j;!; . NOTARY PUBLIC. CALIFORNIA s:
- . .. .... SAN BERNARDINO COUNTY -
1 My Commi~.,on ExpIt.. APril.14. ~ooo 1
Public in and for said County and State
STATE OF CALIFORNIA
)
: ss
COUNTY OF SAN BERNARDINO )
On this 18th day of May, 1998, before me, Marcia L. Peterson, a Notary Public in and for said
County and State, personally appeared Thomas H. McPeters, 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 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.
WITNESS my hand and official seal.
f@'MA'C<AC~;" 1
... .
:!!' .. COMM. #1094127 2:
2 NOTARY PUBLIC. CALIFORNIA s:
- ....... SAN BERNAROINO COUNTY -
1 My Commi,:"ion ExpIt.. APril.'.:. .~~ .1
Not ry Public in and for said County and State
10
98-126
CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
No_5907
State of
County of
California
San Bernardino
On
June 03. 1998
DATE
before me,
M. P. Hastings. Notary
NAME, TITLE OF OFFICER - E.G., "JANE DOE, NOTARY PUBLIC.
personally appeared
Judith Valles
NAME(S) OF 51GNER(S)
Qg personally known to me - OR - 0 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 ac-
knowledged 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.
.1 (i) M. P. HASTINGS ~
- Comm. , 1127908 III
Ul NOTARY PUBUC-CAUFOIlHIA
San tarnardlno COtInty :
1_ Ily COOI_, 1.11111 FIi. at, 1001 ~
,WITNESS my hand and official seal.
'7!tt1k~z)
_ SIGNA E OF NOTARY
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER
o INDIVIDUAL
o CORPORATE OFFICER
DESCRIPTION OF ATTACHED DOCUMENT
TITLE OR TYPE OF DOCUMENT
TITLE(S)
o PARTNER(S)
o LIMITED
o GENERAL
o ATTORNEY-iN-FACT
o TRUSTEE(S)
o GUARDIANlCONSERV ATOR
o OTHER:
NUMBER OF PAGES
DATE OF DOCUMENT
SIGNER IS REPRESENTING:
NAME OF PEASON(S) OR ENTITY(lES)
SiGNER(S) OTHER THAN NAMED ABOVE
C1993 NATIONAL NOTARY ASSOCIATION. 8236 Remmel Ave., P.O. Box 7184 -Canoga Park. CA 91309-7184
98-126
STATE OF CALIFORNIA
)
: ss
COUNTY OF SAN BERNARDINO )
On this day of May, 1998, before me, , a Notary Public in and
for said County and State, personally appeared Judith Valles, 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 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.
WITNESS my hand and official seal.
Notary Public in and for said County and State
11
98-126
]-"!CPETERS ~lcALEARXEY SHIMOFF & HATT
.... I.R()....";.~SH):"i.\J.(.O~J.()I{.\.TH):"
THOMAS H. McPETERS
JOHN O. McALEARNEY. JR.
PAUL M. SHIMOFF
DANIEL T. HATT
JAMES R. HARPER
11t)~IJo: S.\YI;.;<;S 0.... .\.\lI";N:U'.\ HLILJH::"'C;
S}o;('O;';1> r"LoOR
.. WE:--oT ..o':DL.\.:"US BOL'T.";\".\N:D
I'()ST ()........t<.E I~()X ~()~...
TEL 909.792.8919
FAX 909.792.6234
REDl.ANDS. CALIFORNIA 92373-0661
May 18, 1998
City of San Bernardino
300 North "D" Street
San Bernardino, CA 92401-1507
Re: City of San Bernardino and EI Corte Ingles, S A.l1998 City of San Bernardino Assignment
and Loan Assumption Agreement (1995 HUD Section 108 Loan Agreement)
Dear Ladies and Gentlemen:
We have acted as counsel for EI Corte Ingles, SA., a Spanish Corporation (the "Company"), in
connection with the Assignment and Loan Assumption Agreement with respect to the two (2)
separate loan agreements with the City (i) in the stated principal amount of$7,350,000 (the "Section
108 Loan"), and, (ii) in the stated principal amount of $3,150,000 (the "Float Loan") made by you
to The Harris Company, a California corporation.
We have examined the original or otherwise identified to our satisfaction as a true copy of the 1998
City of San Bernardino Assignment and Loan Assumption Agreement (1995 HUD Section 108 Loan
Agreement).
The Assignment and Loan Assumption Agreement and all other documents given or executed in
connection herewith are hereinafter collectively referred to as the" Assignment and Assumption
Documents". Unless otherwise defined herein or unless the context otherwise requires, terms defined
in the Assignment and Assumption Documents (and any documents that are referenced therein or
incorporated by reference therein) shall have the same meanings when used herein.
We have participated in the preparation of, and have assisted the Company in its activities relative to,
the transactions contemplated by, or referred to in, the Assignment and Assumption Documents. We
have examined such records, documents, instruments, certificates of public officials and of the
Company, made such inquiries of officials of the Company, and considered such questions oflaw as
we have deemed necessary for the purpose of rendering the opinions set forth herein.
We represent that the signatures of those persons who have executed the 1998 City of San
Bernardino Assignment and Loan Assumption Agreement (1995 HUD Section 108 Loan Agreement)
on behalfofthe Company are genuine.
98-126
City of San Bernardino
May 18, 1998
Page 2
We have assumed the genuineness and the authenticity of all items submitted to us as originals and
the conformity with originals of all items submitted to us as copies.
In making our examination of the Assignment and Assumption Documents executed by entities other
than the Company, we have assumed that each such other entity had the power to enter into and
perform all its obligations thereunder and also have assumed the due authorization by each such entity
of all requisite action and the due execution and delivery of such documents by each such entity.
Whenever our opinion herein with respect to the existence or absence offacts is indicated to be based
on our knowledge or awareness, it is intended to signify that during the course of our representation
of the Company as herein described, no information has come to our attention which would give us
actual knowledge of the existence or absence of such facts, and no inference as to our knowledge of
the existence or absence of such facts should be drawn from our representation of the Company.
The opinions hereinafter expressed are subject to the following further qualifications:
(i)
arrangement,
generally.
Our opinion is subject to the effect of bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights of creditors
(ii) Our opinion is subject to limitations imposed by general principles of equity upon the
specific enforceability of any of the remedies, covenants or other provisions of the Assignment and
Assumption Documents and upon the availability of injunctive relief or other equitable remedies, and
the application of principles of equity (regardless of whether enforcement is considered in proceedings
in law or in equity) in regard to certain covenants and provisions of agreements where (a) the breach
of such covenants or provisions imposes restrictions or burdens upon the Company, including the
acceleration of indebtedness due under debt instruments, and it cannot be demonstrated that the
enforcement of such restrictions or burdens is reasonably necessary for your protection or (b) your
enforcement of such covenants or provisions underthe circumstances, or in the manner, would violate
the your implied covenant of good faith and fair dealing, or would be commercially unreasonable.
(iii) Certain rights and remedies contained in the Assignment and Assumption Documents
may be rendered ineffective, or limited, by applicable laws or judicial decisions governing such
provisions, but such laws and judicial decisions do not, in our opinion, make the Assignment and
Assumption Documents inadequate for the practical realization of the benefits and/or security
intended to be provided by the Assignment and Assumption Documents.
(iv) Provisions in the Assignment and Assumption Documents imposing penalties,
forfeiture, late payment charges or an increase in interest rate upon delinquency in payment or the
occurrence of a default may be unenforceable under California law.
...
98-126
City of San Bernardino
May 18, 1998
Page 3
(v) Requirements in the Assignment and Assumption Documents specifying that
provisions of the documents may only be waived in writing may not be enforced under California law
to the extent that an oral agreement has been executed modifying provisions of the Assignment and
Assumption Documents.
Based upon and subject to the foregoing, WE .'\RE OF THE OPINION THAT
(a) The Company is a corporation duly organized, validity existing and in good standing
under the laws of the jurisdiction of its incorporation and is duly qualified and in good standing to do
business in Spain and has full corporate power and authority to conduct its business as presently
conducted.
(b) The Company has full corporate power and authority to execute and deliver, and to
perform and observe the provisions of, the Assignment and Assumption Documents.
(c) The Assignment and Assumption Documents have each been duly authorized,
executed and delivered by the Company and constitute valid and binding obligations of the Company
enforceable in accordance with their respective terms.
(d) The execution and delivery of the Assignment and Assumption Documents, and the
Company's performance and observance of and compliance with the provisions of them do not
conflict with or result in a violation of its Articles ofIncorporation or Bylaws.
(e) We have not become aware of any information which would lead us to believe that
the execution, delivery and performance of, and compliance with, the Assignment and Assumption
Documents by the Company will violate or result in any breach of or constitute a default under any
existing law or governmental regulation, or any order of any coun or administrative agency, or any
agreement by which Company is bound or subject.
(f) The 1998 City of San Bernardino Assignment and Loan Assumption Agreement
(1995 HUD Section 108 Loan Agreement) is in appropriate form for due recordation in the State of
California, and, upon its recordation will not affect the enforceability or priority of the present Deed
of Trust of record, recorded on April 24,1995 as Document No. 95-129260, Official Records, San
Bernardino County.
(g) The 1996 Consolidated Financial Statements presented to the City of San Bernardino
in April, 1998 were prepared in the ordinary course of business by the Company's accountants, Arthur
Andersen, and to the best of our knowledge, (1) are the true and correct 1996 Consolidated Financial
Statements of the Company, (2) fairly and accurately represent the financial condition of the
Company, and, (3) are used by the Company in other business transactions.
98-126
City of San Bernardino
May 18, 1998
Page 4
Our examination oflaw relevant to the matters herein is limited to Spanish, California and Federal
law. We have not made an independent review of the laws of any country other than Spain or any
state other than California. Accordingly, we express no opinion as to the matters governed by the
laws of any other country, state or jurisdiction.
This opinion is solely for your benefit in connection with the referenced transaction and may not be
quoted or relied on by, nor copies by delivered to, any other person., or used for any other purpose,
without our prior written consent.
McPeters McAlearney Shimoff & Hatt,
A Professional Corporation
,
By:
98-126
~ICPETERS J\;IC_-\.LEAR"'EY SHI:\IOFF & HATT
.\. "l{()l""';SSlo=".\L('Oi<J'()~.\T'O:-';
THOMAS H. McPETERS
JOHN D. McALEARNEY, JR.
PAUL M. SHIMOFF
DANIEL T. HATT
JAMES R. HARPER
110:\11-; S.\\"I:"C:S 0.... .\.\IJ.;NH'_\ BL"II.DI:"O<:
SI";'CO!"<o;Dl-"J.OOW:
TEL 909.792.8919
-+ \VEST I~EnL.\.:-"-n:-o BOL" I.K\".\ UI>
"()ST (lj"r'I('J-; IHlX ~OH4
FAX 909.792.6234
REDLANDS. CALIFORNIA 92373-0661
May 18,1998
City of San Bernardino
300 North "D" Street
San Bernardino, CA 92401-1507
Re: City of San Bernardino and The Harris Company/1998 City of San Bernardino Assignment
and Loan Assumption Agreement (1995 HUD Section 108 Loan Agreement)
Dear Ladies and Gentlemen:
We have acted as counsel for The Harris Company, a California Corporation (the "Company"), in
connection with the Assignment and Loan Assumption Agreement with respect to the two (2)
separate loan agreements with the City (i) in the stated principal amount of$7,350,000 (the "Section
108 Loan"), and, (ii) in the stated principal amount of $3,150,000 (the "Float Loan") made by you
to the Company.
We have examined the original or otherwise identified to our satisfaction as a true copy of the 1998
City of San Bernardino Assignment and Loan Assumption Agreement (1995 H1JD Section 108 Loan
Agreement).
The Assignment and Loan Assumption Agreement and all other documents given or executed in
connection herewith are hereinafter collectively referred to as the" Assignment and Assumption
Documents". Unless otherwise defined herein or unless the context otherwise requires, terms defined
in the Assignment and Assumption Documents (and any documents that are referenced therein or
incorporated by reference therein) shall have the same meanings when used herein.
We have participated in the preparation of, and have assisted the Company in its activities relative to,
the transactions contemplated by, or referred to in, the Assignment and Assumption Documents. We
have examined such records, documents, instruments, certificates of public officials and of the
Company, made such inquiries of officials of the Company, and considered such questions of law as
we have deemed necessary for the purpose of rendering the opinions set forth herein.
We represent that the signatures of those persons who have executed the 1998 City of San
Bernardino Assignment and Loan Assumption Agreement (1995 HUD Section 108 Loan Agreement)
on behalf of the Company are genuine.
98-126
City of San Bernardino
May 18, 1998
Page 2
We have assumed the genuineness and the authenticity of all items submitted to us as originals and
the conformity with originals of all items submitted to us as copies.
In making our examination of the Assignment and Assumption Documents executed by entities other
than the Company, we have assumed that each such other entity had the power to enter into and
perform all its obligations thereunder and also have assumed the due authorization by each such entity
of all requisite action and the due execution and delivery of such documents by each such entity.
Whenever our opinion herein with respect to the existence or absence off acts is indicated to be based
on our knowledge or awareness, it is intended to signifY that during the course of our representation
of the Company as herein described, no information has come to our attention which would give us
actual knowledge of the existence or absence of such facts, and no inference as to our knowledge of
the existence or absence of such facts should be drawn from our representation of the Company.
The opinions hereinafter expressed are subject to the following further qualifications:
(i)
arrangement,
generally.
Our opinion is subject to the effect of bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights of creditors
(ii) Our opinion is subject to limitations imposed by general principles of equity upon the
specific enforceability of any of the remedies, covenants or other provisions of the Assignment and
Assumption Documents and upon the availability of injunctive relief or other equitable remedies, and
the application of principles of equity (regardless of whether enforcement is considered in proceedings
in law or in equity) in regard to certain covenants and provisions of agreements where (a) the breach
of such covenants or provisions imposes restrictions or burdens upon the Company, including the
acceleration of indebtedness due under debt instruments, and it cannot be demonstrated that the
enforcement of such restrictions or burdens is reasonably necessary for your protection or (b) your
enforcement of such covenants or provisions under the circumstances, or in the manner, would violate
the your implied covenant of good faith and fair dealing, or would be commercially unreasonable.
(iii) Certain rights and remedies contained in the Assignment and Assumption Documents
may be rendered ineffective, or limited, by applicable laws or judicial decisions governing such
provisions, but such laws and judicial decisions do not, in our opinion, make the Assignment and
Assumption Documents inadequate for the practical realization of the benefits and/or security
intended to be provided by the Assignment and Assumption Documents.
(iv) Provisions in the Assignment and Assumption Documents imposing penalties,
forfeiture, late payment charges or an increase in interest rate upon delinquency in payment or the
occurrence of a default may be unenforceable under California law.
98-126
City of San Bernardino
May 18, 1998
Page 3
(v) Requirements in the Assignment and Assumption Documents specifYing that
provisions of the documents may only be waived in writing may not be enforced under California law
to the extent that an oral agreement has been executed modifYing provisions of the Assignment and
Assumption Documents.
Based upon and subject to the foregoing, WE ARE OF THE OPINION THAT
(a) The Company is a corporation duly organized, validity existing and in good standing
under the laws of the jurisdiction of its incorporation and is duly qualified and in good standing to do
business in California and has full corporate power and authority to conduct its business as presently
conducted.
(b) The Company has full corporate power and authority to execute and deliver, and to
perform and observe the provisions of, the Assignment and Assumption Documents.
(c) The Assignment and Assumption Documents have each been duly authorized,
executed and delivered by the Company and constitute valid and binding obligations of the Company
enforceable in accordance with their respective terms.
(d) The execution and delivery of the Assignment and Assumption Documents, and the
Company's performance and observance of and compliance with the provisions of them do not
conflict with or result in a violation of its Articles ofIncorporation or Bylaws.
(e) We have not become aware of any information which would lead us to believe that
the execution, delivery and performance of, and compliance with, the Assignment and Assumption
Documents by the Company will violate or result in any breach of or constitute a default under any
existing law or governmental regulation, or any order of any court or administrative agency, or any
agreement by which Company is bound or subject.
(f) The 1998 City of San Bernardino Assignment and Loan Assumption Agreement
(1995 HUD Section 108 Loan Agreement) is in appropriate form for due recordation in the State of
California, and, upon its recordation will not affect the enforceability or priority of the present Deed
of Trust of record, recorded on April 24, 1995 as Document No. 95-129260, Official Records, San
Bernardino County.
Our examination oflaw relevant to the matters herein is limited to California and Federal law. We
have not made an independent review of the laws of any state other than California. Accordingly, we
express no opinion as to the matters governed by the laws of any other country, state or jurisdiction.
98-126
City of San Bernardino
May 18, 1998
Page 4
This opinion is solely for your benefit in connection with the referenced transaction and may not be
quoted or relied on by, nor copies by delivered to, any other person, or used for any other purpose,
without our prior written consent.
McPeters McAlearney Shimoff & Hatt,
A Professional Corporation
--
Thomas H. McPeters
9 ~.i:i 6
UI Bank of America
PAGE, 1
DATE, MAY 28, 1998
AMENDMENT TO IRREVOCABLE STANDBY CREDIT NUMBER, 223140
AMENDMENT NUMBER 1
BENEFICIARY
CITY OF SAN BERNARDINO
ECONOMIC DEV. AGENCY
201 NO. "E" ST. 3RD FLOOR
SAN BERNARDINO, CA. 92401-1507
APPLICANT
EL CORTE INGLES, S.A.
HERMOSILLA, 112
MADRID 28009, SPAIN
THIS AMENDMENT IS TO BE CONSIDERED AN INTEGRAL PART OF THE ABOVE CREDIT
AND MUST BE ATTACHED THERETO.
THE ABOVE MENTIONED CREDIT IS AMENDED AS FOLLOWS,
APPLICANT'S NAME AND ADDRESS NOW TO READ AS ABOVE.
ON ANNEX A WHERE IT READS "HARRIS" SHOULD READ "EL CORTE INGLES, S.A.".
ALL/7./~~S AND JITIONS REMAIN UNCHANGED.
_J;je_':~--!.~c'0. -~f";.; - --
AUTHORIZED SIGNATURE '. ....0,e'11 A RIZ 0
/ L { THIS OOCUMENT CONSISTS Ov A
T. CHATMAN
<;'-3-Qe,
~f\ U'~8
'* o'f-
0' C"'1)T$(-I~la
FlbLrCDPY
... al' ~ NTISA T... QIMlION Cenw 5155
mSoult....,.--.....'IlttFlr...........CA 10011
CAlLE ADDRESS; T... MClI18A BAHKAMIFl SFO. SWIFT ADDRESS IOFAUSlSS
0__
~*'" ,..lfWI"....
98-126
.m. Sank of America
III
International Trade Bank #2621
333 South Beaudry Avenue, 19th Ploor
Los Angeles, Cali~ornia 90017
January 30, 1995
Irrevocable Letter of Credit No. LASB.223140
Benefic::iarv:
City of San Bernardino
Economic Development Agency
201 North "g. Street, 3rd Floor
San Bernardino, Ca 92401.1507
~(Q)~
Dear Sirs:
At the request and for the account of The Barris Company, 300
North "E" Street, San Bernardino, Ca 92416 we hereby establish in
your favor our irrevocable letter of credit in the amount of Three
Million One Hundred Fifty Thousand and NO/100 U.S. Dollars
($3,150,000.00) available with ourselves by payment of your
draftes) drawn on us at sight, each accompanied by your signed and
dated statement in the form of the Annex A attached hereto.
Each draft must be marked "Drawn under Bank of America Letter
of Credit No, LASB 223140 DATED January 30, 1995."
Partial drawings under this letter of credit are permitted.
Each draft presented hereunder must also be accompanied by the
original of this letter of credit upon which we may endorse the
amount of our payment.
Each draft must be presented to us, on or before May 6, 1996
on which date this letter of credit expires, at our above office.
The expiration date of this letter of credit shall be
automatically extended without amendment for a one year period from
May 6, 1996, and on each successive expiration date, but in no
event later than May 6, 2000, unless at least sixty (60) days
before the current expiration date, we notify you by registered
mail or overnight courier service at the above address, that this
letter of credit is not extended beyond the current expiration
date.
We hereby engage with you that your sight draft accompanied by
your Annex A and presented in full compliance with the terms of
this Letter of Credit at or before 9:00 a.m., Los Angeles time will
be honored by payment to you in immediately available funds, no
later that 1:00 p.m., on the same day. If we receive your draft
and required Annex A in full compliance with the terms and
conditions of this Letter of Credit after 9:00 a.m., we shall honor
your demand for pa)'"'ment no later that 1:00 p.m. on the first
banking day following receipt of such draft.
This letter of credit is subject to
Practice for Documentary Credits (1993
Chamber of Commerce Publication No. 500.
the Uniform Customs and
Revision) International
* * * * * * * * *
* *
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(l,J I~:I" (."...;;.::: ,,-,en, r ,\,1"\1
. ~:7'U7";j""EciCoUNrER"GN"URE---
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AUTHQfllZED SIGNATURE
PROVISIONS APPLICABLE TO T,HIS GRE:DIT: This credit is Subject to the Uniform Customs and Practice for Documentary Credits.
1993 revision, International Chamber fl.! Commerce Publication No. 500.
P!,:.<!se ex.?mine Ihl~ Instrument carj:>!ully II you are unable te comOly with the terms or conditions, please communlcnte with tht'
.-:C2' :", p:'rty !e -.: " :-g(' lor an am","'cmen" ThiS p~C'cedllre ;;'iH lacililate prompt h.lndling '.'.'hl"1"1 documents ar... prt'senled.
FX.':tf33.'.Il'leor....5.,.1
98-14All
l:I' S. Bank of America
[]]
ANNllX A
t"
, ))~7
;-j U
Statement
I. an authorized officer of the City of San Bernardino (.City.),
hereby certify that the City is making demand for payment under
Sank of America, Letter of Credit No. LASS 223~40 in respect of
amounts (1) owed as of the date of this Statement by Barris' (the
"Borrower") under that certain Loan Agreement dated as of
January 30, 1995 {the "Agreement" by and between the Borrower and
the City and/or (II) otherwise permitted to be drawn from said
Letter of Credit as provided in the Agreement.
(Insert Date)
By:
Its: Hayor
j)L
.,ur ZEOCQlJNTEI'lSIGNATURE AUTHOfllZEDS!GNATURE
I " ,
PROVISIONS APPLICABLE TO THISlCREDIT: This credit is subject to lhe Uniform Cusloms and Practice for Documentary Credits,
1993 revision, International Chamber or Commerce Publication No. 500.
PiC?:;:" '?>:<ltnine !hlS Instrument ca~efuny If you Are unable 10 comply with the terms or conditions. please communicate \'.-ith the
'~,-"'I:1t P,J"fy to "!rr~~g~ lor an am~mdrnent. This procedure willlacihtate promot handling when documents are presented.
Fl!.I3UJ." r""",,",s.tooIl
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Ch.:-r;.i
'98-126
m
Bank of America
Inland Empire Regional
Commercial Banking 1496
May 21, 1998
Mayor Judith Valles
City of San Bernardino
300 North "0" Street
San Bernardino, California 92418
Re: Bank of America Standby Letter of Credit No. 223140
Beneficiary: City of San Bernardino, Economic Development Agency
Amount: $3,150,000
Dear Mayor Valles:
This letter is being issued at the request of The Harris Company
We hold in hand the Amendment application to the subject letter of credit
authorizing Bank of America to substitute EI Corte Ingles, S.A. as the Applicant
in place of The Harris Company.
The necessary credit approvals have been obtained for this change and we
anticipate that the amendment process will be completed by the end of next
week. This timtng will allow for our Trade Services department to issue the
amendment.
If you should have any questions, please call me (909/781-1527) or Jim Heil
(909/781-1510).
~:~;eryyuIY, 7.
\'-->( / I r, /_'-.
-~l-~---i~ !~UAo p ~
Helen Wilson
Vice President
Bank of America National Trust and Savings Association
3650 14th Street 2nd Floor Riverside. CA 92501 Phone 9091781-1453 Fax 9091781 -1596
o_~,c..
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&IlnA UP Aat:;lUCA.
1aI004
Ell Bank 01 Amw:c:a
98-126
rtJ: aani;; at AJ'TUN'tQ Nadanal1i'u:sI Dd s.vl~ Anccd.rlon ("ear ..",.
lue.-
~ AppII_. _
'E!. CORTE INGLXS.
::IFWI_1........._..
S. A. ("eu..on.r.,... t..as hnll'lO'" "'~""""'''''QfcrMtl('"lAarof CNdIt")..follawE'
o .......-.nbrilltJR".tlllllftlf....~........... ion........ b Airmail !I Cat.trW
.~~ ofceu-___ -... ~ ........)
n COa.n: mct.Zs. 5.A.
Hermo.iJ.J.a. 112
28009 ~&4rid. Spain
-.....
:nA
In'--!"of(.... -j JIII...,...,~
C~Cy 'of San S_rnard1no
Eeonomi~:D~.lapmant ASency
201 No~h E S~r..c. 3r~ ?loor
San Bernard1aD7 Ca 92401-1'07
'!brae M:Ul.:i.gn One Rynd:red
AmclUN &: F1.t'~ Thol.lsand. (3 .1~O.OOO.O ~l
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~ cr. S. tJDllays
~ 0.": Qqb:IO_Grawn CIII Md pr-.....a.nk'.1uuing
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A1t...I.b\f............allghton..niI'.~UI'll1wn.n ~d.o~ 't1~1~... TI.hod M
1."l'l\eorlciin.........,......aI~.
2.. n._..,..........oI..b.,...IUUy~_~(....eucr', 'OI"dIncr'b...Ja1a......lnttle~~ylftgu.drH):
Pl.... ~end .~p11eAn:'. uam_ on ch_ a~~~ChBd S~aD4bT L.CCer of Cr.41t 'LAS~ 223140
to read ... follovl(II:
n CORTE nt;L1:S. S. A.
K.na.os'111..&, 112
28009 HadrtJ. S~~
Sgod_ Iftlllna:lkIM:
CUlltomwrlM"d...tIindII.... I"- rlMtoeu....m.,. W......;, CUNom.., Iq...... ....."obylea...ol Cf'GCfiI1Wfl1d\ ~~aftly<< aft raD\lwlhw! _.stMdbV 1Mh:I.
I:Jl1 cr... olIfUcn ,...... SJJlPOfIIna cilDcurnMldon.
c~ uncl~... tn. ~ Iafm aI rt. Lel_ Df CNdk rmIY"" ....lv -..en ravi.-anl anclI cI'llngM OM..,. ...mOCl n.~....,.<< 1PPropd8,1. by 8lMk'1
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98-126
98-126
C(Q)~1t'
DUPLICATE
ORIGINAL
LEASE
BETWEEN
EL CORTE INGLES, S.A., a Spanish corporation
AND
THE HARRIS COMPANY, a California corporation
(CAROUSEL MALL, SAN BERNARDINO, CALIFORNIA)
(May 2, 1998)
98-126
5.
6.
7.
ParagraDh
1.
2.
TABLE OF CONTENTS
Lease
Page
........................ -................................
11
Landlord and Tenant .....
1.2
Premises . . . . . . . . . . . .
1.3
Term... .
1.4
Rent.. .. . ... . .....
Payment of Rent
,
..... ........ ........ ..... J
3.
Utilities. . . . .. .
4.
Maintenance, Repairs, and Alterations
4.1
4.2
4.3
4.4
4.5
Tenant's Obligations.
Surrender . . . . . . . .
Landlord's Rights . .
Landlord's Obligations
Alterations and Additions . . .
Use of Premises . . . . . . . . . . . .
Assignment and Subletting . . . .
Insurance . . . . . . . . . . . . . . . .
7.1
7.2
7.3
Liability Insurance ...
Workers' Compensation Insurance .
Property Insurance . . . . .
. . . . . . . . . . . . . . . . .. 1
. . . . . . . . . . . . . . . .. 1
......2
,
...... .,)
,
J
3
,
............ .J
.......... 4
4
4
5
6
6
6
6
6
7A
7.5
7.6
8.
98-126
Insurance Policies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 7
Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 7
Exemption of Landlord from Liability. . . . . .
.........8
.......... 8
. . . . .. . . .. 8
Destruction
8.1
8.2
8.3
8A
8.5
8.6
8.7
8.8
8.9
Definitions
Partial Damage - Insured Loss
8
9
9
Partial Damage - Uninsured Loss ..
Total Destruction. . .
Damage Near End of Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 9
Abatement of Rent'; Tenant's Remedies. . . . . . . . . . . . . . . . . . . . . .. 9
Termination - Advance Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10
Waiver. . . . . . . . . . .. ......... . . . . . . . . . . . . . . . . . . . .. 10
Eminent Domain. . . . . . . . . . . . . . . . . . . . . . . . . . .... . . . . 10
9. Property Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
9.1 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10
9.2 Definition of "Real Property Tax" . . . . . . . . . . . II
9.3 Personal Property Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
10. Default. . . .. .. . . .. .. . . . II
10.1 Tenant's Default.. .. .. .. . .. .. .. .. .. .. .. .. ... 11
10.2 Landlord's Remedies ..................................... 12
10.3
lOA
II.
Default by Landlord
. . . . .. . . . .. 12
Tenant's Remedies
13
13
General Provisions .
98-126
11.1
11.2
11.3
1l.4
11.5
11.6
Plats and Riders
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 13
Waiver
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 13
Joint Obligation
.................... .
. . . . . . . . . . . . . . . . . . . . . . .. 13
Marginal Headings
.... -........................
... . . . .... 14
Time.
. . . . . . . . . . . . . . . . . . . . . . . .. 14
Successors and Assigns
.................. -..........
.... . . .. .. 14
11. 7 Recordation................................................ 14
11.8 Quiet Possession. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . .. 14
11.9 Late Charges ............................................... 14
I 1.1 0 Prior Agreements . . . . . . . . . . . . . . . . . . . . . . .. .. . . . . 15
11.11 Inability to Perform .. .. .. .. .. .. .. . .. .. .. . 15
11.l2 Partial Invalidity .. .. .. .. .. .. . .... .. .. .. 15
11.13 Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 15
11.14 Attorneys' Fees .. .. .. .. .. .. .. .. .. .. .. .. . .. .. .. .. .. . .. ... 15
11.l5 Sale of Premises by Landlord ..... . . . . . . . . . . . . . . 15
11.16 Subordination, Attornment . . . . . . . . . . . . . . . . . . . . . . . . . . " 16
1 1.17 Notices. ...... .. .. .. .. .. .. .. .. .. .. .. .. . .. .. .. 16
11.18 Estoppel Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 16
I 1.19 Authority to Sign .............. . . . . . . . . . . . . . . . . . . .. 17
12. Legal Description
12. I Exhibit "A"
98-126
LEASE
This LEASE is effective as of May 2, 1998.
1. LEASE.
Subject to the terms and conditions hereof, Landlord leases to Tenant and Tenant leases from
Landlord the Premises for the Term.
1.1 Landlord and Tenant.
(a) The "Landlord" is EI Corte Ingles, S.A., a Spanish corporation. The
landlord's principal place of business is Hermosilla 112, 28009 - Madrid, Spain.
(b) The "Tenant" is The Harris Company, a California corporation. The Tenant's
principal place of business is 300 North "E" Street, San Bernardino, CA 92416.
1.2 Premises.
The "Premises" is the real property situated in the County of San Bernardino, State
of California, commonly known as 300 North "E" Street, San Bernardino, CA 92416, and being a
part of the Carousel Mall. The legal description is set forth on Exhibit "A", attached hereto and
incorporated herein. The Tenant shall use the building on the Premises as a retail department store
for the sale of retail merchandise. The Premises share common and parking areas with the occupants
of the Carousel Mall.
1.3 Term.
(a) The "Term" shall be Fifteen (I5 ) years, commencing on May 2, 1998, and
ending on May 1,2013, unless sooner terminated pursuant to any provision of this Lease.
(b) Landlord grants to Tenant Two (2) options to extend the Term beyond the
initial Term. Each option shall for an additional Five (5) years. The terms and conditions for any
extended Term shall be the same as the initial Term unless Landlord and Tenant shall mutually agree
to any different or additional terms and conditions. Any exercise of an option by Tenant shall be by
written notice to Landlord not less than Twelve (] 2) months prior to the expiration of the then Term.
A condition precedent to the effective exercise of each option to extend the Term shall be that
Tenant shall not be in material default hereunder (or would be in default but for the passage of time
or the giving of notice, or both (either at the time of giving notice of Ten ant's election to exercise or
on the effective date of the beginning of the extended Term). If Tenant properly gives notice of
exercise hereunder, and the conditions are satisfied, the Term of this Lease shall be extended for the
extended Term covered by the option which is exercised.
98-126
1.4 Rent
(a) Tenant shall pay to Landlord as "Rent" for the Premises an amount equal to
Three Percent (3%) of "Monthly Gross Sales".
(b) "Monthly Gross Sales" shall mean for and with respect to each month of the
Term the actual sales prices or rentals of all goods, wares and merchandise sold, leased, licensed or
delivered, and the actual charges for all services performed by Tenant or by any subtenant, licensee
or concessionaire, determined under and in accordance with the 4-5-4 method that generally prevails
in the department store industry, in, at, from, or arising out of the use of the Premises, whether for
wholesale, retail, cash, credit, trade-in or otherwise, without reserve or deduction for inability or
failure to collect. Monthly Gross Sales shall include without limitation. sales and services( a) where
the orders therefor originate in, at. from, or arising out of the use of the Premises, whether delivery
or performance is made from the Premises or from some other place, (b) made or performed by mail,
telephone, or telegraph orders, (c) made or performed by means of mechanical or other vending
devices in the Premises or in which Tenant or any subtenant, licensee, concessionaire or other person'
in the normal and customary course of its business would credit or attribute to its operations in any
part of the Premises. Each installment or credit sale shall be treated as a sale for the full price in the
month during which such sale is made, regardless of whether or when Tenant receives payment
therefor. No franchise, occupancy or capital stock tax and no income or similar tax based on income
or profits shall be deducted from Monthly Gross Sales.
The following shall not be included in Monthly Gross Sales: (i) any exchange of
merchandise between stores of Tenant where such exchange is made solely for the convenient
operation of Ten ant's business and not for the purpose of consummating a sale made in, at or from
the Premises, or for the purpose of depriving landlord of the benefit ofa sale which would otherwise
be made in or at the Premises. (ii) returns to shippers or manufacturers, (iii) cash or credit refunds
to customers on transactions (not to exceed the actual selling price of the item returned) otherwise
included in Monthly Gross Sales. (iv) sales of trade fixtures. machinery and equipment after use
thereof in the conduct of Tenant's business. (v) amounts collected and paid by Tenant to any
government for any sales or excise tax, and (vi) the amount of any discount on sales to employees.
(c) Tenant shall deliver to Landlord: (a) within fifteen (15) days after the close
of each month of the Term, a written report signed by Tenant or by an authorized officer or agent of
Tenant, showing the Monthly Gross Sales made in the preceding month. The written report shall be
accompanied by the signed certificate of the Chief Financial Ot1icer stating specifically that (i) he has
examined the report of Monthly Gross Sales. (ii) his examination included such tests of Tenant's
books and records as he considered necessary or appropriate under the circumstances. (iii) such
report presents fairly the Monthly Gross Sales of the preceding month and (iv) the Monthly Gross
Sales conform with and are computed in compliance with the definition of ~lonthly Gross Sales
contained in Paragraph 14 (b) If Tenant shall fail to deliver such written report and certificate to
Landlord within the Fifteen (15) day period, Landlord shall have the right thereafter to employ an
independent Certified Public Accountant to e.'\amine such books and records as may be necessary to
~
98-126
certifY the amount of Tenant's Monthly Gross Sales in such preceding month, and Tenant shall pay
to Landlord the cost thereof as Additional Rental, and if required by Landlord in writing, flood and
earthquake coverage, in the amount of one hundred percent (100%) of full replacement cost.
2. PAYMENT OF RENT
Tenant agrees to pay to Landlord, without notice or demand, the Rent defined in Paragraph
lA, on or before the fifteenth (15th) day that follows the end of each and every month during the
Term. Rent for any period which is less than one month shall be prorated based upon a 30 day
month. The Rent shall be paid to Landlord, in lawful money of the United States of America and at
such place as Landlord may from time to time designate in writing.
3. UTILITIES.
All utilities, including gas, electric, water, trash services and sanitary sewer services shall be
available to the Premises, and Tenant shall be responsible therefor. Tenant's utility charges shall
include any and all fees, charges. and other costs assessed by city, state or local authorities related'
to the providing of such services to the Premises in compliance with all laws, ordinances, regulations
and requirements.
4. MAINTENANCE. REPAIRS. AND ALTERATIONS.
4.1 Tenant's Ob1i~ations.
Tenant shall keep in good order, condition, and repair, the Premises (whether or not
such portion of the Premises requiring repair. or the means of repairing the same are reasonably or
readily accessible to Tenant, and whether or not the need for such repairs occurs as a result of
Tenant's use, any prior use, the elements, or the age of such portion of the Premises) including,
without limiting the generality of the foregoing, all plumbing, heating, air conditioning (Tenant shall
procure and maintain, at Tenant's expense, an air conditioning system maintenance contract),
ventilating, electrical, lighting facilities and equipment within the Premises, fixtures, floors, windows,
doors, plate glass, and skylights located within the Premises, and all landscaping. driveways, parking
lots, fences, and signs located on the Premises and sidewalks and parkways adjacent to the Premises.
4.2 Surrender.
On the last day of the Term hereof, or on anv sooner termination, Tenant shall
surrender the Premises to Landlord in the same condition as ""hen received. ordinary wear and tear
excepted, clean and free of debris. Tenant shall repair any damage to the Premises occasioned by the
installation or removal of Tenant's trade fixtures. furnishings. and equipment. Notwithstanding
anj1hing to the contrary otherwise stared in this Lease. Tenant shall leave the air lines. power panels,
electrical distribution systems. lighting tix1ures. space heaters. air conditioning. built-in refrigeration
and freezer systems. plumbing. and fencing on the Premises in good operating condition
3
98-126
4.3 Landlord's Rir!hts.
If Tenant fails to perform Tenant's obligations under this Paragraph 4, Landlord may
at its option (but shall not be required to) enter upon the Premises after 10 days' prior written notice
to Tenant (except in the case of an emergency, in which case no notice shall be required). perform
such obligations on Tenant's behalf and put the same in good order, condition, and repair, and the
cost thereof together with interest thereon at the maximum rate then allowable by law shall become
due and payable as additional rental to Landlord together with Tenant's next rental installment.
4.4 Landlord's Oblir!ations.
Landlord, at Landlord's expense, will keep the roof. foundations and walls of the
Premises in sound structural condition. Landlord agrees that the existing roof will be free from all
leaks, at the commencement of the Term and at all times thereafter, and to the extent that leaks exists,
make the necessary repair or repairs within a reasonable period of time, not to exceed 90 days after
notification by Tenant.
4.5 Alterations and Additions
(a) Tenant shall not, without Landlord's prior written consent make any alterations,
improvements, additions, or Utility Installations in, on, or about the Premises, except for
nonstructural alterations not exceeding $50.000 in cumulative costs during the Term of this Lease.
In any event, whether or not in excess of$50.000 in cumulative cost, Tenant shall make no change
or alteration to the exterior of the Premises nor the exterior of the building on the Premises without
Landlord's prior written consent. As used in this Paragraph 45, the term "Utility Installation" shall
mean flooring, carpeting, window coverings, air lines. power panels, electrical distribution systems,
lighting fixtures, space heaters, air conditioning. refrigeration, plumbing. and fencing. Landlord may
require that Tenant remove any or all of said alterations. improvements, additions. or Utility
Installations at the expiration of the Term, and restore the Premises to their prior condition. Landlord
may require Tenant to provide Landlord. at Tenant's sole cost and expense, a lien and completion
bond in an amount equal to one and one-halftimes the estimated cost of such improvements. to insure
Landlord against any liability for mechanics' and material men's liens and to insure completion of the
work. Should Tenant make any alterations, improvements. additions, or Utility Installations without
the prior approval of Landlord, Landlord may require that Tenant remove any or all of the same.
(b) Any alterations, improvements. additions, or Utility Installations in. or about
the Premises that Tenant shall desire to make and which requires the consent of the Landlord shall
be presented to the Landlord in written form, with proposed detailed plans. If Landlord shall give
its consent, the consent shall be deemed conditioned upon Tenant acquiring a permit to do so from
appropriate governmental agencies. the furnishing of a COpy thereof to Landlord prior to the
commencement of the \\iork and the compliance by Tenant of all conditions of said permit in a prompt
and expeditious manner.
4
98-126
(c) Tenant shall pay, when due. all claims for labor or materials furnished or
alleged to have been furnished to or for Tenant at or for use in the Premises, which claims are or may
be secured by any mechanics' or material men's lien against the Premises or any interest therein.
Tenant shall give Landlord not less than] 0 days' notice prior to the commencement of any work in
the Premises, and Landlord shall have the right to pOSt notices of nonresponsibility in or on the
Premises as provided by law. If Tenant shall, in good faith, contest the validity of any such lien,
claim, or demand, then Tenant shall, at its sole expense defend itself and Landlord against the same
and shall pay and satisfY any such adverse judgment that may be rendered thereon before the
enforcement thereof against the Landlord or the Premises, upon the condition that if Landlord shall
require, Tenant shall furnish to Landlord a surety bond satisfactory to Landlord in an amount equal
to such contested lien claim or demand indemnifYing Landlord against liability for the same and
holding the Premises free from the effect of such lien or claim. In addition. Landlord may require
Tenant to pay Landlord's attorneys' fees and costs in participating in such action if Landlord shall
decide it is to its best interest to do so.
(d) Unless Landlord requires their removal. as set forth in Paragraph 4.5(a), all.
alterations, improvements, additions and Utility Installations (whether or not such Utility Installations
constitute trade fixtures of Ten ant), which may be made on the Premises, shall become the property
of Landlord and remain upon and be surrendered with the Premises at the expiration of the Term.
Notwithstanding the provisions of this Paragraph 4.5(d), Tenant's machinery and equipment, other
than that which is affixed to the Premises so that it cannot be removed without material damage to
the Premises, shall remain the property of Ten ant and may be removed by Tenant subject to the
provisions of Paragraph 6.2.
5. USE OF PRE:vnSES
5.1 Tenant shall use the Premises for the use described in Paragraph 1.2 or any other use
which is reasonably comparable or related and shall not use or permit the Premises to be used for any
other purpose without the prior written consent of Landlord.
5.2 Tenant shall not use the Premises. or permit anything to be done in or about the
Premises, which will in any way contlict with any law, statute. ordinance, or governmental rule or
regulation now in force or which may hereafter be enacted or promulgated. Tenant shall, at its sole
cost and expense, promptly comply with all laws. statutes, ordinances, and governmental rules,
regulations, or requirements now in force or which may hereafter be in force and with the
requirements of any board of fire underwriters or other similar bodies now or hereafter constituted
relating to or affecting the condition. use or occupancy oflhe Premises, excluding structural changes
not related to or affected by Tenant's improvements or acts. The judgment of any court of competent
jurisdiction or the admission of Ten am in any action against Tenant, whether Landlord be a party
thereto or not. that Tenant has violated any law. statute, ordinance, or governmental rule, regulation
or requirement. shall be conclusive of that fact as between the Landlord and Tenant
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5.3 Tenant shall comply with and otherwise observe in all respects the requirements
imposed upon Landlord and Tenant by the HUD Section 108 Loan Agreement (dated May 4, 1995),
and the Assignment and Loan Assumption Agreement (1995 HUD Section 108 Loan Agreement: The
Harris Company, dated May 4, 1998).
6. ASSIGNMENT AND SUBLETTING.
6.1 Tenant shall not have the right to assign or sublet all or any part of the Premises.
7. INSURANCE.
7.1 Liabilitv Insurance.
Tenant shall, at Tenant's expense obtain and keep in force during the term of this
Lease a policy of combined single limit, bodily injury and property damage insurance insuring
Landlord and Tenant as their interests may appear and without co-insurance against any liability
arising out of the ownership, use, occupancy, or maintenance of the Premises and all areas
appurtenant thereto (i.e. "all risk" coverage). Such insurance shall be combined single limit policy
in an amount not less than $2,000,000 per occurrence. The policy shall insure performance by Tenant
of the indemnity provisions of Paragraph 7.5 The limits of said insurance shall not, however, limit
the liability of Ten ant hereunder.
7.2 Workers' Compensation Insurance.
(a) Tenant shall maintain Worker's Compensation Insurance covering all costs,
statutory benefits and liabilities under State Workers' Compensation and similar laws for the
employees of Ten ant, and Employer's Liability Insurance, with limits of not less than $500,000.00
per accident or disease.
(b) Tenant warrants that its contractors shall maintain Workers' Compensation
and Employer's Liability Insurance for the contractors' employees and Tenant further shall indemnifY
Landlord for any loss, cost, liability, expense and damage suffered by Landlord as a result of Ten ant's .
breach of this warranty.
7.3 Propertv Insurance.
(a) Tenant shall maintain property insurance upon all building improvements
installed by Tenant. alterations and supplies on the Premises, including, but not limited to, those
perils generally covered, including fire, extended coverage, windstorm, vandalism, and malicious
mischief, and if required by Landlord in writing, flood and earthquake coverage, in the amount of one
hundred percent (100%) of full replacement cost.
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(b) Tenant shall maintain insurance on the building and any building improvements
existing on the Premises as of the Effective Date of this Agreement. Insurance shall mean insurance
covering those perils generally covered, including fire, extended coverage, windstorm, vandalism, and
malicious mischief, and if required by Landlord in writing, flood and earthquake coverage, in the
amount of one hundred percent (I 00%) of full replacement cost.
7.4 Insurance Policies.
Insurance required hereunder shall be in companies approved by Landlord. The
Tenant shall deliver to the Landlord copies of policies of such insurance or certificates evidencing the
existence and amounts of such insurance with loss payable clauses as required by this Paragraph 7.
No such policy shall be cancellable or subject to reduction of coverage or other modification except
after 30 days' prior written notice to Landlord. Tenant shall. at least 30 days prior to the expiration
of such policies, furnish Landlord with renewals or "binders" thereof, or Landlord may order such
insurance and charge the cost thereof to Tenant, which amount shall be payable by Tenant upon
demand. Tenant shall not do or permit to be done anything which shall invalidate the insurance
policies referred to in this Paragraph 7. If Tenant does or permits to be done any1hing which shall'
increase the cost of the insurance policies referred to in this Paragraph 7, then Tenant shall forthwith
pay any such additional premiums.
Tenant and Landlord each hereby release and relieve the other. and waive their entire
right of recovery against the other for loss or damage arising out of or incident to the perils insured
against under this Paragraph 7, which perils occur in or about the Premises, whether due to the
negligence of Landlord or Tenant or their agents, employees, contractors and/or invitees. Tenant and
Landlord shall, upon obtaining the policies of insurance required hereunder. give notice to the
insurance carrier or carriers that the foregoing mutual waiver of subrogation is contained in this
Lease.
7.5 Indemnitv.
Tenant shall indemnif)' and hold harmless Landlord from and against any and all claims
arising from Tenant's use of the Premises, or from the Tenant's conduct of Ten ant's business or from
any activity, work or other things done, permitted or suffered by Tenant in or about the Premises or
elsewhere, and shall further indemnify and hold harmless Landlord from and against any and all claims
arising from any breach or default in the performance of any obligation on Tenant's part to be
performed under the terms of this Lease, or arising from any negligence of the Tenant, or any of
Tenant's agents, contractors, or employees and from and against all costs. attorneys' fees, expenses
and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon;
and in case any action or proceeding be brought against Landlord by reason of any such claim, Tenant
upon notice from Landlord shall defend the same at Tenant's expense by counsel satisfactory to
Landlord.
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7.6 ExemPtion of Landlord from liabilitv.
Tenant hereby agrees that landlord shall not be liable for injury to Tenant's business
or any loss of income therefrom or for damage to the goods. wares, merchandise or other property
of Tenant, Tenant's employees, invitees. customers, or any other person in or about the Premises, nor
shall Landlord be liable for injury to the person of Tenant, Tenant's employees, agents or contractors,
whether such damage or injury is caused by or results from fire, stearn, electricity, gas, water or rain,
or from the breakage, leakage, obstruction. or other defects of pipes, sprinklers, wires, appliances,
plumbing, air conditioning, or lighting fixtures, or from any other cause. whether the said damage or
injury results from conditions arising upon the Premises or upon other portions of the building of
which the Premises are a part, or from other sources or places and regardless of whether the cause
of such damage or injury or the means of repairing the same is inaccessible to Tenant. landlord shall
not be liable for any damages arising from any act or neglect of any other tenant, if any, of an adjacent
building.
8. DESTRUCTION.
8.1 Definitions
(a) "Partial Damage" shall herein mean damage or destruction to the Premises to the
extent that the cost of repair is less than 50% of the then replacement cost of the Premises.
(b) "Total Destruction" shall herein mean damage or destruction to the Premises to
the extent that the cost of repair is 50% or more of the then replacement cost of the Premises.
(c) "Insured loss" shall herein mean damage or destruction which was caused by an
event required to be covered by the insurance described in Paragraph 7.3.
8.2 Partial Dama!!e - Insured loss.
Subject to the provisions of Paragraphs 8.4,8.5 and 8.6, ifat any time during the term
of this Lease there is Partial Damage which is an Insured Loss, then Landlord shall repair such
damage, but not Tenant's fixtures, equipment or tenant improvements as soon as reasonably possible
and this Lease shall continue in full force and effect. Notwithstanding the above. if the insurance
proceeds received by Landlord are not sufficient to effect such repair, landlord shall give notice to
Tenant of the amount required in addition to the insurance proceeds to effect such repair. If Tenant
elects to contribute such amount to landlord, landlord shall make such repairs as soon as reasonably
possible and this Lease shall continue in full force and effect. Tenant shall in no event have any right
to reimbursement for any such amounts so contributed. If Tenant elects to not contribute to such
amount to Landlord, Landlord may either proceed to make such repairs at his expense or terminate
the lease.
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8.3 Partial Dama!!e - Uninsured loss.
Subject to the provisions of Paragraphs 84.8.5, and 86, ifat any time during the
term of this Lease there is Partial Damage which is not an Insured loss, unless caused by a negligent
or willful act of Ten ant (in which event Tenant shall make the repairs at Tenant's expense), Landlord
may at Landlord's option either (i) repair such damage as soon as reasonably possible at Landlord's
expense, in which event this lease shall continue in full force and effect, or (ii) give written notice
to Tenant within 30 days after the date of the occurrence of such damage of Landlord's intention to
cancel and terminate this Lease, Tenant shall have the right within 10 days after the receipt of such
notice to give written notice to landlord of Tenant's intention to repair such damage at Tenant's
expense, without reimbursement from landlord, in which event this Lease shall continue in full force
and effect, and Tenant shall proceed to make such repairs as soon as reasonably possible. If Tenant
does not give such notice within such ] O-day period this Lease shall be canceled and terminated as
of the date of the occurrence of such damage.
8.4 Total Destruction.
If at any time during the term of this lease there is Total Damage. whether or not an
Insured Loss (including destruction required by any authorized public authority), this Lease shall
automatically terminate as of the date of such total destruction.
8.5 Dama!!e Near End of Term.
If at any time during the last six months of the term of this Lease there is Partial
Damage, whether or not an Insured loss. landlord may at Landlord's option cancel and terminate
this Lease as of the date of occurrence of such damage by giving written notice to Tenant of
Landlord's election to do so within 30 days after the date of occurrence of such damage.
8.6 Abatement of Rent: Tenant's Remedies.
(a) In the event of damage described in Paragraphs 8.2 or 8.3. and Landlord or
Tenant repairs or restores the Premises pursuant to the provisions of this Paragraph 8, Tenant shall
have no claim against Landlord for any damage suffered by reason of any such damage, destruction,
repair or restoration.
(b) If landlord shall be obligated to repair or restore the Premises under the
provisions of this Paragraph 8 and shall not commence such repair or restoration within 90 days after
such obligations shall accrue. Tenant may at Tenant's option cancel and terminate this lease by giving
Landlord written notice of Tenant's election to do so at any time prior to the commencement of such
repair or restoration. In such event this lease shall terminate as of the date of such notice.
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8.7 Termination - Advance Pavments.
Upon terrnination of this Lease pursuant to this Paragraph 8, an equitable adjustment
shall be made concerning advance rent and any advance payments, if any, made by Tenant to
Landlord. Landlord shall, in addition, return to Tenant so much of Ten ant's security deposit, ifany,
as has not theretofore been applied by Landlord.
8.8 Waiver.
Landlord and Tenant waive the provisions of any statutes which relate to tennination
ofleases when leased property is destroyed and agree that such event shall be governed by the terrns
of this Lease.
8.9 Eminent Domain.
If more than 25% of the Premises shall be taken or appropriated by any public or
quasi-public authority under the power of eminent domain, either party hereto shall have the right, ..
at its option, within 60 days after said taking, to terminate this Lease upon 30 days written notice.
In the event of any taking or appropriation whatsoever, Landlord shall be entitled to any and all
awards and/or settlements which may be given (except to the extent Tenant is perrnitted by law to
recover additional or separate damages for such a taking). and Tenant shall have no claim against
Landlord for the value of any unexpired term of this Lease.
9. PROPERTY TAXES.
9.1 Pavment of Taxes.
Tenant shall pay the real property tax. as that term is defined in Paragraph 9.2,
applicable to the Premises during the term of this Lease. All such payments shall be made at least 10
days prior to the delinquency date of such payment. Tenant shall promptly furnish Landlord with
satisfactory evidence that such taxes have been paid. Ifany such taxes paid by Tenant shall cover any
period of time after the expiration of the Term hereof, Tenant's share of such taxes shall be equitably
prorated to cover only the period of time within the tax fiscal year during which this Lease shall be
in effect, and Landlord shall reimburse Tenant to the extent required. If Tenant shall fail to pay any
such taxes, Landlord shall have the right to pay the same, in which case Tenant shall repay such
amount to Landlord with Tenant's next rent installment together with interest at the maximum rate
then allowable by law.
If the Premises are not separately assessed, Tenant's liability shall be an equitable
proportion of the real property taxes for all of the land and improvements included within the tax
parcel assessed, such proportion to be determined by Landlord from the respective valuations
assigned in the assessor's work sheets or such other information as may be reasonably available.
Landlord's reasonable determination thereof, in good faith. shall be conclusive
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9.2 Definition of "Real Prooertv Tax".
As used herein, the term "real property tax" shall include any form of real estate tax
or assessment, general, special, ordinary or extraordinary, and any license fee, commercial rental tax,
improvement bond or bonds, levy or tax (other than inheritance, personal income or estate taxes)
imposed on the Premises by any authority having the direct or indirect power to tax, including any
city, state or federal government, or any school, agricultural, sanitary, fire, street, drainage or other
improvement district thereof, as against any legal or equitable interest of Landlord in the Premises
or in the real property of which the Premises are a part, as against Landlord's right to rent or other
income therefrom, and as against Landlord's business of leasing the Premises. The term "real
property tax" shall also include any tax, fee, levy. assessment or charge (i) in substitution of, partially
or totally, any tax, fee, levy, assessment or charge herein above included within the definition of "real
property tax", or (ii) the nature of which was hereinbefore included within the definition of "real
property tax", or (iii) which is imposed for a service or right not charged prior to May 2, 1998, or, if
previously charged, has been increased since May 2, 1998 or, (Iv) which is imposed as a result of a
transfer, either partial or total, of Landlord's interest in the Premises or which is added to a tax or
charge hereinbefore included within the definition of real property tax by reason of such transfer, or"
(v) which is imposed by reason of this transaction, any modifications or changes hereto, or any
transfers hereof
9.3 Personal Prooertv Taxes:
Tenant shall pay prior to delinquency all taxes assessed against and levied upon trade
fixtures, furnishings, equipment and all other personal property of Tenant contained in the Premises
or elsewhere When possible, Tenant shall cause said trade fixtures, furnishings, equipment and all
other personal property to be assessed and billed separately from the real property of Landlord.
10. DEFAULT.
10.1 Tenant's Default.
The occurrence of anyone or more of the following events shall constitute a default
and breach of this Lease by Tenant:
(a) The vacating or abandonment of the Premises;
(b) The failure by Tenant to make any payment of rent or any other payment required
to be made by Tenant hereunder. as and when due. where such failure shall continue for a period of
10 days after written notice thereof by Landlord to Tenant;
(c) The failure by Tenant to observe or perform any of the covenants, conditions or
prOVISions of this Lease to be observed or performed by the Tenant. other than described in
Paragraph (b) above. where such failure shall continue for a period of 30 days after written notice
thereof by Landlord to Tenant. provided. however. that if the nature of Ten ant's default is such that
II
98-126
more than 30 days are reasonably required for its cure, then Tenant shall not be deemed to be in
default if Tenant commences such cure within said 30 day period and thereafter diligently prosecutes
such cure to completion; or
(d) The making by Tenant of any general assignment or general arrangement for the
benefit of creditors; or the filing by or against Tenant of a petition to have Tenant adjudged a
bankrupt, or a petition or reorganization or arrangement under any law relating to bankruptcy (unless,
in the case of a petition filed against Tenant, the same is dismissed within 60 days); or the
appointment of a trustee or a receiver to take possession of substantially all ofT enant's assets located
at the Premises or of Tenant's interest in this Lease, where possession is not restored to Tenant within
30 days; or the attachment, execution or other judicial seizure of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease. where such seizure is not discharged
within 30 days.
10.2 Landlord's Remedies.
In the event of any such default or breach by Tenant, Landlord may at any time'
thereafter, in his sole discretion, with or without notice or demand and without limiting Landlord in
the exercise of a right or remedy which Landlord may have by reason of such default or breach:
(a) Terminate Tenant's right to possession of the Premises by any lawful means, in
which case this Lease shall terminate and Tenant shall immediately surrender possession of the
Premises to Landlord. In such event Landlord shall be entitled to recover from Tenant all damages
incurred by Landlord by reason of Tenant's default including. but not limited to. the cost of
recovering possession of the Premises; expense of reletting. including necessary renovation and
alteration of the Premises; reasonable attorneys' fees; the worth at the time of award by the court
having jurisdiction thereof of the amount by which the unpaid rent and other charges and adjustments
called for herein for tRe balance of the term after the time of such award exceeds the amount of such
loss for the same period that Tenant proves could be reasonably avoided; and that portion of any
leasing commission paid by Landlord and applicable to the unexpired term of this Lease. Unpaid
installments of rent or other sums shall bear interest from the date due at the ma-..:imum legal rate; or
(b) Maintain Tenant's right to possession. in which case this Lease shall continue in
effect whether or not Tenant shall have abandoned the Premises. In such event Landlord shall be
entitled to enforce all of Landlord's rights and remedies under this Lease. including the right to cover
the rent and any other charges and adjustments as may become due hereunder; or
(c) Pursue any other remedy now or hereafter available to Landlord under the laws
or judicial decisions of the State of California.
10.3 Default bv Landlord.
Landlord shall not be in default unless Landlord fails to perform obligations required
of Landlord within a reasonable time, but in no event later than 30 days after written notice by Tenant
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11.4 Marginal Headings.
The marginal headings and anicle titles to the anicles of this Lease are not a part of
the Lease and shall have no effect upon the construction or interpretation of any part hereof
115 Time.
Time is of the essence of this Lease and each and all of its provisions in which
performance is a factor.
11.6 Successors and Assigns.
The covenants and conditions herein contained. subject to the provIsions as to
assignment, apply to and bind the heirs, successors, executors, administrators and assigns of the
parties hereto.
11.7 Recordation.
Neither Landlord nor Tenant shall record this Lease, but a short form memorandum
hereof may be recorded at the request of either party.
11.8 Ouiet Possession.
Landlord agrees to deliver possession of the Premises to Tenant on the
commencement date of the Term. Upon Tenant paying the rent reserved hereunder and observing
and performing all of the covenants, conditions and provisions on Tenant's part to be observed and
performed hereunder, Tenant shall have quiet possession of the Premises for the entire Term hereof,
subject to all the provisions of this Lease, and Landlord shall defend said right of Ten ant against any
person or persons seeking to eject Tenant from the Premises.
11. 9 Late Charges.
Tenant hereby acknowledges that late payment by Tenant to Landlord of rent or other
sums due hereunder will cause Landlord to incur costs not contemplated by this Lease, the exact
amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges. and late charges which may be imposed upon Landlord by terms
of any mongage or trust deed covering the Premises. Accordingly, if any installment of rent or any
sum due from Tenant shall not be received by Landlord or Landlord's designee within 10 days after
written notice that said amount is past due, then Tenant shall pay to Landlord a late charge equal to
the maximum amount permitted by law (and in the absence of any governing law, ten percent of such
overdue amount). plus any attorneys' fees incurred by Landlord by reason of Tenant's failure to pay
rent and/or other charges when due hereunder. The panies hereby agree that such late charges
represent a fair and reasonable estimate of the cost that Landlord will incur by reason of the late
payment by Tenant. Acceptance of such late charges by the Landlord shall in no event constitute a
14
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waiver of Tenant's default with respect to such overdue amount, nor prevent Landlord from
exercising any of the other rights and remedies granted hereunder.
11.10 Prior Agreements.
This Lease contains all of the agreements of the parties hereto with respect to any
matter covered or mentioned in this Lease, and no prior leases, agreements or understandings
pertaining to any such matters shall be effective for any purpose. No provision of this Lease may be
amended or added to except by an agreement in writing signed by the parties hereto or their
respective successors in interest. This Lease shall not be effective or binding on any party until fully
executed by both parties hereto.
11.11 Inabilitv to Perform.
This Lease and the obligations imposed hereunder shall not be affected or impaired
because a party is unable to fulfill any of its obligations hereunder or is delayed in doing so, if such
inability or delay is caused by reason of strike, labor troubles, acts of God, or any other cause beyond ..
the reasonable control of the party.
11.12 Partiallnvaliditv.
Any provision of this Lease which shall prove to be invalid, void, or illegal shall in no
way affect, impair or invalidate any other provision hereof and such other provision shall remain in
full force and effect.
11.13 Cumulative Remedies.
No remedy or election hereunder shall be deemed exclusive, but shall, whenever
possible, be cumulative with all other remedies at law or in equity
11. 14 Attornevs' Fees.
In the event of any action or proceeding brought by either party against the other
under this Lease the prevailing party shall be entitled to recover the fees of its attorneys in such action
or proceeding, including costs of appeal, if any, in such amount as the court may adjudge reasonable
as attorneys' fees. In addition, should it be necessary for Landlord to employ legal counsel to enforce
any of the provisions herein contained, Tenant agrees to pay all attorneys' fees and court costs
reasonably incurred.
11.15 Sale of Premises bv landlord
In the event of any sale of the Premises by landlord, Landlord shall be entirely freed
and relieved of all liability under any and all of its covenants and obligations contained in or derived
from this Lease arising out of any act, occurrence or omission occurring after the consummation of
such sale; and the purchaser, at such sale or any subsequent sale of the Premises shall be deemed to
15
98-126
have assumed and agreed to carry out any and all of the covenants and obligations of the Landlord
under this Lease.
11.16 Subordination. Attornment.
Upon request of the Landlord, Tenant will in writing subordinate its rights hereunder
to the lien of any mortgage or deed of trust, to any bank, insurance company or other lending
institution, now or hereafter in force against the Premises, and all advances made or hereafter to be
made upon the security thereof
In the event any proceedings are brought for foreclosure, or in the event of the
exercise of the power of sale under any mortgage or deed of trust made by the Landlord covering the
Premises, the Tenant shall attorn to the purchaser upon any such foreclosure or sale and recognize
such purchaser as the Landlord under this Lease.
Notwithstanding the provisions of this Paragraph, so long as Tenant is not in default,
this Lease shall remain in full force and effect for the full term. ..
11.17 Notices.
All notices and demands which mayor are to be required or permitted to be given by
either party to the other hereunder shall be in writing. All notices and demands by the Landlord to
the Tenant shall be sent by United States Mail, postage prepaid, addressed to the Tenant at the
Premises, and to the address set forth in Paragraph 1.1 (b), or to such other place as Tenant may from
time to time designate in a notice to the Landlord. All notices and demands by the Tenant to the
Landlord shall be sent by United States Mail, postage prepaid, addressed to the Landlord at the
address set forth in Paragraph 1.1(a), and to such other person or place as the Landlord may from
time to time designate in a notice to the Tenant.
11.18 EstoDPel Certificate
Each party shall at any time and from time to time, upon not less than 10 days prior
written request from the other party, execute, acknowledge and deliver to the requesting party a
statement in writing (i) certifying that this Lease is unmodified and in full force and effect (or, if
modified, stating the nature of such modification and certifying that this Lease as so modified is in
full force and effect), and the date to which the rental and other charges are paid in advance, if any.
and (ii) acknowledging that there are not, to the party's knowledge, any uncured defaults on the part
of the requesting party hereunder, or specifying such defaults ifany are claimed, and (iii) setting forth
the date of commencement of rents and expiration of the term hereof Any such statement may be
relied upon by third parties identified by the requesting party at the time of the request.
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98-126
11.19 Authority to Sign.
Each individual executing this Lease on behalf of a named corporation represents and
warrants that such individual is duly authorized to execute and deliver this Lease on behalf of the
corporation, in accordance with the bylaws of that corporation, and that this Lease is binding upon
the corporation.
This Lease has been signed by the parties hereto to be effective the day and year first above
written.
Landlord
!:#I/."
~'_T'"
,
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---
Carlos Martinez-Echavarria
Executive Director of the Board
Attest:
Tenant
The Harris Company, a California
corporation
~Cl)
0~(UC;~
By:
Thomas H. McPeters, Secretary
Leopoldo Del Nogal, President and
Chief Executive Officer
17
98-126
Exhibit "A"
P';RCEL NO.1:
PARCEL 12 0:- P/\RCEL H.l:l.? NO. 688, Iri THE CITY 0: SAN SERN?o.?..DH:-:l, COU~{rY 0:- S.;N
BERHr.RDINO, ST;..:r:: 0: C~.LI:O?NI';, AS PER P_~.? R~CO?D~O !N Boo:-: 25 0: P;'.?CEL }J..::'.?S f ?,~":2:.
<.7 TO 56 INCLUSIVE, IN 'I:-:Z O.::IC:; 0: 'ZHE: COUNTY F.::CO?.DE:R 0: Sr,!D COU~I'!":".
Pr.?CEL NO.2:
'Z20SE: CERTAIN ~;ON-:::Y.CLUS!VE Er.SE:::EH!'S tJ?O::, OVE?, UNOER AND i\C?QSS 'IE! LAND DESC?:2.2~
ht'\O FOR. ~HE USE I\NO PUP.POSES OEFIUEO BY 1-.RTICLE V 0: 'i:HAT CE:tr';HI DECLr.Rl\TIO~: 0:-
nES:rRICTIO~IS I CO:1STRUC'!'ION, O?E?.;:rrOft I RESTRICTION i\NO EASEX:::::r AC?EE:::.:nr, EXECUTE::-
BY THE P.EDEVELO?!-!ENT ACEtlCY 0: THE CITY OF s?o.:r BE?'!j~.ROHIO, C;'.L! rO?N lA, E'I ~.L., 0.;720
O:;CEH3::R 2~, 1970 }"~iO RECORDED O:::C::::-~3:;R 21" 1970 IH BOOK 7560 ?r.C:::: 2ao, O::ICIA.r.
RECO?uS.
Pr.RC::::L NO.3:
"ALL 'ZEDS:::: E:~.SEHE~iTS FOrt Hh!..LS, FOOT!NCS, F'OUND;\7'IONS AND SU3SV'?:AS:Z SU.P?ORT, J\tiD
UTILITY FACILITIES 0: THE "HARRIS EUILDING" AS G~.NTED, AND HO::t~ :pr.RTICUL~.RLY'
D::::SC?IS=:O A~jD DEFINED BY' THE FOLLOiH!iG INS'!'?U~:EN1'S R,ECORO::::O Ili 'ri-:E OFFICE a: '!r.::
COUNTY' P.ZCORDER 0:- THE COUNTY OE' Sr.N BE?_'ir.?DINOi
A. ;C.G:t:::EH"::NT EN'!E~EO INTO ON S::::?7E~!aER 15, 1971 BY .?ND BE'!'nZZN '!HZ Ei\.~:tIS COX?;.~:y I ..
Cr...LIFO:ua;.. CO??O?_=i.'i:"ION, ;'.~iO 'IHE P20:::VELO?:'I:::I,'!' r.CENCY 0: THE: C!7Y 0: Sr.~ :aE?N.?P~!~.;O,
C.;LIFO?~;IA r..NO R.=:CO?..o:::D ON OC't03:::R 21, 1971 IN' BOO::: 7278, OF OF:r.C!~.L R.ZCO?.DS, P.::'.G::::
56'~ .
B. j;,GREEP.El'i'i." ESTE:?ZD IN'tO o~r SE?:r:::!'~a::::R 30, 1971 Er r.ND BETHE:::ti J:ri2 li.:l..?RIS CO~!?::'.~;:.'
;.ND JO:-:~i s. GRIE'FITH .?~.;D CO~!?';NY I r. CO??O?.).Trmi, F.ND CU?CI-:riJ?l'i~?. COX?';~{Y r ;..
P;'.?-rN2?S:iI?, Jon;'!' VZNTUR2S UND:::~ 7:-:::: NF-_I.!::: 1-.:-1:;) STtL:: 0: C2N'I?...:'.:' CITY CO~?~.N"[ r ;.~;D..
CO~;:t:::CT!CUT GEN2?_:'.t.. r:O?TC;'.CE: ;'.Nu ?Z:;'.LTY INVE:S7K2NIS, ;.. K;SS?-.C::vSS::TTS BUSIN:::SS 'Z?r.iST I
r.ND ?2CO~n:::D O~~ 0(:70:;:::::\ 21., 1971 IE EOO_~~ 7278 0: O:::rCI~ RECO?~Sr P.;G::: 589.
98-126
cO)(Py
DUPLICATE
ORIGINAL
AGREEMENT
This Agreement is made by and between The Harris Company, a California corporation, and
EI Corte Ingles, S. A., a Spanish corporation, to be effective on and as of May 2, ]998,
1. Definitions. The following terms as used in this Agreement shall have the meanings ascribed
to them:
(a) "Harris" shall mean The Harris Company, a California corporation.
(b) "ECI" shall mean EI Corte Ingles, S. A., a Spanish Corporation.
(c) "Parties" shall mean Harris and ECI.
(d) "Agreement" shall mean this Agreement by and between Harris and ECL
(e) "Effective Date" shall mean May 2, 1998.
(f) "San Bernardino Store" shall mean the real property and improvements situated in the
County of San Bernardino, State of California, commonly known as 300 North "E"
Street, San Bernardino, California 924] 6, and being a part of the Carousel Mall. The
legal description is set forth on Exhibit "A", attached hereto and incorporated herein.
(g) "HUD Section 1 08 Loan" shall mean the loan as set forth in the Agreement by and
between The Harris Company, a California corporation, and, The City of San
Bernardino, a municipal corporation dated May 4, 1995, in the original amount of
Seven Million Three Hundred Fifiy Thousand Dollars (57,350,000.00), and secured
by the Deed of Trust with Assignment of Rents by The Harris Company, a California
corporation, as Trustor, Chicago Title Company, a California corporation, as Trustee,
and City of San Bernardino, as Beneficiary, dated April 2], 199-1, recorded on April
25, 1995 as Docllmem :--:0 95-129260 in the Official Records of San Bernardino
County, and, Amendment 1'-:0 I to HUD Section 108 Loan Agreement by and
between The Harris Company, a California corporation, and, The City of San
Bernardino, a municipal corporation dated p-'[ay 16, 1996.
(h) "Unpaid Balance ofrhe HUD Section 108 Loan" shall mean Se\'en J\'lillion Thirty Five
Thousand Dollars (57,035,000.00) as of the Effective Date.
98.,-}26
(i) "Float Loan" shall mean the loan as set forth in the Loan Agreement by and between
The Harris Company, a California corporation, and, The City of San Bernardino, a
municipal corporation dated January 30, 1995, in the original amount of Three Million
One Hundred Fifty Thousand Dollars ($3,150,000.00), evidenced by a Promissory
Note dated January 30, 1995, and, secured by the Bank of America, NTSA
Irrevocable Letter of Credit No. LASB-221340 dated January 30, 1995.
(j) "Unpaid Balance of the Float Loan" shall mean a total of Three Million One Hundred
Fifty Thousand Dollars ($3,150,000.00) as of the Effective Date.
(k) "Float Loan Sinking Fund" shall mean the interest payments made to the City of San
Bernardino, with respect to the Float Loan, retained in a separate interest bearing
account maintained by the City of San Bernardino, and to be credited against the
Unpaid Balance of the Float Loan at the maturity date, as more fully set forth in the
loan documents with respect to the Float Loan
(I) "Balance of Sinking Fund" shall mean Eight Hundred Seventy One Thousand Six'
Hundred Seventy Five Dollars (5871,67500) plus interest earned with respect to the
separate interest bearing account maintained by the City of San Bernardino, as of the
Effective Date.
(m) "Net Book Value of the San Bernardino Store" shall mean a total ofThirteen Million
Twenty Nine Thousand Four Hundred Thirty Three Dollars ($13,029,433.00) as of
the Effective Date, of which Five Hundred Twenty Four Thousand Dollars
($524,000.00) is attributed to the Land, Twelve ,vlillion Two Hundred Twenty Seven
Thousand Nine Hundred Forty Six Dollars (512,227,946.00) is attributed to the
Building and Improvements-Store, One Hundred Forty Four Thousand Fifty Three
Dollars (5]44,053.00) is attributed to Building Improvements-Corporate, and, One
Hundred Thirty Three Thollsand Four Hundred Thirty Four Dollars (5133,434.00)
is attributed to the Building Improvements-lSD.
2. Transfer of Balance ofSinkimz Fund and San Bernardino Store to ECI. Harris shall transfer
the Balance of Sinking Fund and the San Bernardino Store to ECI, as of the Effective Date,
subject to the HUD Section 108 Loan and the Float Loan
3. ECI to Pav Uno aid Balance of the HUT) Section 108 Loan and the Unoaid Balance of the
Float Loan. ECI shall pay the Unpaid Balance of the Hl D Section 108 Loan and the Unpaid
Balance of the Float Loan when due and otherwise in accordance with the terms and
conditions of the H1c D Section 108 Loan and the Float Loan
~
98-126
4, Net Book Value of Store: Harris and ECI agree that the Net Book Value of the San
Bernardino Store conforms to the accounting records maintained by Harris in accordance
with generally accepted accounting principles.
5. Further Coooeration The Parties agree to provide any further documents or instruments,
and shall perform any further acts that may be reasonably required to fully effect the
transactions contemplated by this Agreement.
6. Arbitration: Any controversy or claim arising out of, or relating to, this Agreement, or the
making, performance, or interpretation of it, shall be settled by arbitration in San Bernardino,
California, under the commercial arbitration rules of the American Arbitration Association
then existing, and judgment on the arbitration award may be entered in any court having
jurisdiction over the subject matter of the controversy.
7. Attornev Fees: If any legal action is brought by any party to enforce any provision of this
Agreement, the prevailing party shall be entitled to recover from the other party reasonable
attorneys' fees and court costs in such amounts as shall be allowed by the court.
8. Governing Law: This Agreement is entered into the County of San Bernardino, California
and shall be governed by and construed in accordance with the laws of the State ofCalifomia.
9. Modification of Agreement: This Agreement may be modified by Harris and ECI by a
written instrument signed by each of them specifically referencing this Agreement and stating
the changed provisions thereof, and, not otherwise.
10. Counteroarts. This Agreement may be executed by the parties hereto in any number of .
counterparts, each of which shall be deemed to be an original, but all of such counterparts
together shall constitute one and the same instrument.
11. Time is of the Essence Time is of the essence in this Agreement.
12. Severabilitv: Any terms or provisions of this Agreement which shall prove to be invalid,
void, or illegal shall in no way affect, impair, or invalidate any other term or provision herein
and such remaining terms and provisions shall remain in full force and effect.
3
98-126
13, Authoritv: Any person signing this Agreement represents that he has full power and
authority to do so, and, that his signature is legally sufficient to bind the party on whose
behalf he is signing.
14. Entire Agreement: This Agreement contains the entire understanding of the parties with
respect to the subject matter hereof, and supersedes any prior understanding between the
parties, whether written or oral.
SIGNATURE PROVISIONS ON FOLLOWING PAGE
4
98-126
IN WITNESS WHEREOF, the parties have executed this Agreement to be effective on and
as of May 2,1998.
The Harris Company, a California corporation
/
C7c ~'-'L-L-u--:;::-:0
Leopoldo Del Nogal
President and Chief Executive Officer
[Seal]
By:
And:
-
~C{)
Thomas H. McPeters
Secretary
-~J' , EI Corte Ingles, S. A, a Spanish corporation
..,.i:/.!....L..!'
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. . ." """;1. /" ,
/..-" p' /t:"..- ...'IY""'-''''~ ;
t&/ - v' i ..", ,/'
Carlos Martinez Echavarria
Executive Director of the Board
5
98-126
Exhibit "A"
P;;RCZL NO.2:
P';RCEt 12 OF P/\RC=:r.. HAP NO. 689, !li THE: eI'!'l' 0: S.;N 5:::tN~.?.oIt;':), COUti1Y OF S.:'.N
aZiUI.:'.ROINO, STATE: 0: C;'.t!FO?NI;:",.;:..S ?:::::t r~;? RECO?OEO Itl BOO:: 2S OF P;.~C:::L !-'_;PS, ?;'.::~.:
~7 TO 56 ItleLUSIVE, It; 'i'r.S OE'FIC:: OF' J:'H~ CQUN'!'r F.tCO?.DE?. 0: S;.!O COi.m:r.
P;'.?C::::r. ~iO. 2:
7:-!OSE: CE:'R7AIN ~;ON-EY.Cr..USIVE E.::'.S'::~:E:lfrS U?O::, OVER, UNO:::R AND ;.C?OSS Tii! L.b,,~ro DESC:HS;:::;
AKO FOR. THE USE: l\No ?U??OS'::S O'::FIN:::O BY ;d~.!'ICL:: V OF 7:-{",'Z' CE:?-r';!tl O:::CL;:'.Rl\'!'IO~: OF
nES7R!C'!'IO:lS I CO:ISTRUC'I'!O~r, .O?ER.;TIOCl, RESTRICrIOrl i\ND E}..S:::X:::I:r ;'.CRE::::~::::~tT t EXc:ceJ"I'2J
BY 'ZH':: P.EOZVZLO?"':::::ti':t' ;:"C:::~:Cy OF 'ZHE: CITY 0:: SA:l B! ?..N.?o.RO Hi'O, C;'.!.!rO:t:/!;.., E'l" ;'.t.. I D.~.7~0
DEC:::--!3:::R 2';, 1970 ;"~rD !J..ZCO:::"D!D O::CE:~3!R 2!', 1970 IN 500:< 7sea ?;..c::: 2ea, O::'!C!~.:.
RECOROS.
P;"RC~L NO.3:
. ALL 'Z'HOSE E}l.S:;H.E:H'3:'S FO::l H}l.!.!..S, FOOTItiCS, FOUNDt\:LIONS AND S03SU?:.;c::=: Su??O?:L, ~~;:J
U1'ILI'l'X' F;"C!L!TI€S 0:: 'Z':-!~ "HARRIS BUILOINC" ;:"$ C;:t;..HTEO, j;ND P.O?=: :p;.?!ICUL?o.:u.y
O::::SCRI6Z0 A!'iD DE::!tiE:O BY 'IHE: FOt.LOj.'II;G INS'tRU!-::::tiTS P..E:CO:l.O:;O It; 'i";.:'Z O::.!C2 0:' 1':-;::
COUNTi' P.zCO:tOE~ OF. 'I'H2 COUNTt OF S.;N 22?"."l??D!NO;
r.. r.G?22HZNT :::~:72:U:D !N70 O~i SE?7'::EZER 15 t ~971 :BY ]1.~;D S:::T;.;:::::C 'i"i-:'=: P'.::'_':l_~ZS CO:";?;'.~:::, "
C;..!...IFOR!.j:i:i.... CO??O?_;TION, j:..~iD TEE: p.zO:E:1/ZLO?:{::r,r ;'.G::~:CY OF 'I~::: CIT? 0: S.:'.N B:::?~.::..?!'.?!z...o,
C;'.!.!FO~NI;, r.ND RZCO?..o::o O~1 OCTOS:::? :21, 1971 IN EOO:\. 7278, or o:rrcr;'.L R2CO?..DSr ?::..c:::
5o'~ .
E. ;'.GR:::::Z!-'2~:7 E:;T2?ZD !ti;:'O O~i SZ?T:::~.:ZZ? 301' 1571 s:t }.~D :a2i:i,::':::i 7:;:: E;:'.??IS CO~:?:'.~:::
r.NO .JO:-:~i s. C?r ::.!7P. r.t.jO CO~;?';~i::, r. eO?:?O?_:..?rO~;, r.NO CU?C::::-Tu;;:~::? CO:-::?::'.S:- r i-.
?':'_~T~i:::?S::I? 1 .:rOni:" V'::::-i?U?ES U::OE~ T=-:::: N.::'_l.!2 ;:=';NiJ STYL:: 0: c::t;r?_=-.:' err::' COX?r.N:', ;..~;:::.
CO:-ii;::C?ICUT c.;::ti2?-::'.'L r:O?i:Cr.C::: ;..~iiJ ?:::':'.LTY n:VESTX:;:;TS, ;:.. rr...::'.SS~C::iJSS:::77S BUSIN:::SS ';';'.,...::'.:. I
r.ND ?2CO?D::D O~r OC:'05':':::-' 21., 1971 Hi SOO:: 727Z 0: O::IClr':' R:::CO?OS, ?::'.C:: 589.
98-126
.-
COI?1f
DUPLICATE
ORIGINAL
GRANT OF AUTHORITY TO EXECUTE ANY DOCUMENTTH.-\ T i\1.-\ Y BE REQUIRED
BY THE CITY OF SAN BER:'iARDINO AND/OR THE UNITED STATES DEPARTMENT
OF HOUSING AND URBAN DEVELOP;\IENTWITH RESPECT TO THE TRANSFER OF
THE SAN BER.NARDINO STORE PROPERTY FROM THE HARRIS COi\lPANY, A
CALIFO&'1L-\ CORPORATION, TO EL CORTE INGLES, S, A., A SPANISH
CORPORATION
I. Grant of Authoritv: EI Cortes Ingles, S. A., a Spanish corporation, hereby grants to Jorge
Pont, Leopoldo Del Nogal, and Thomas H. McPeters the right and authority to execute on its behalf,
any two (2) of them acting together, any documents that may be required by the City of San
Bernardino and/or the United States Department of Housing and Urban Development, with respect
to the transfer by The Harris Company, a California corporation, to it of the San Bernardino Store
Building (as defined in Paragraph 2 hereof), subject to the HUD Loan (as defined in Paragraph 3
hereof), and the Float Loan (as defined in Paragraph 4 hereof).
2. Definition of San Bernardino Store Buildin!!: "San Bernardino Store Building" as used in
Paragraph I shall mean and refer to the property situated in the County of San Bernardino, State of
California located at 300 North "E" Street, San Bernardino, California, legally described as set forth
in Exhibit "An, attached hereto and incorporated by reference.
3. Definition ofHUD Loan: '"HUD Loan" as used in Paragraph 1 shall mean and refer to any
and all of the following:
(a) HUD Section 108 Loan .-\greement dated as ofi\"lay 4, 1995 by and between The City
of San Bernardino, a municipal corporation and The Harris Company.
(b) Promissory Note dated April 21, 1995 by and between Harris and The City of San
Bernardino in the amount of Sc\'en i\lillion Three Hundred Fith- Thousand Dollars
(S7,350.000).
(c) Deed of Trust with Assignment ot'Rents by The Harris Company. as Trustor; Chicago
Title Company, a California corporation, as Trustee; and City of San Bernardino, as
Beneficiary, dated ,-\pril 21, 1995 and recorded on April 24. 1995 as Document No.
95-129260.
98-126
(d) Amendment No. I to HUD Section 108 Loan Agreement dated May 16, 1996 by and
between the City of San Bernardino, a municipal corporation and The Harris
Company.
4. Definition of Float Loan: "Float Loan" as used in Paragraph I shall mean and refer to any
and all of the following:
(a) Float Loan Agreement dated as ofJanuary 30,1995 by and between The City of San
Bernardino, a municipal corporation and The Harris Company.
(b) Promissory Note dated January 30, 1995 by and between Harris and The City of San
Bernardino in the amount of Three Million One Hundred Fifty Thousand Dollars
($3,150,000).
(c) Bank of America, NTSA Irrevocable Letter of Credit No. LASB-221340 dated
January 30, 1995.
5. Effective Date and Revocation: This Grant of Authority shall be effective upon the execution
hereof, and shall remain effective until revoked in writing specifically referencing it. Any action taken
pursuant hereto prior to revocation shall continue to be valid and legally binding.
IN WITNESS WHEREOF, this Grant of Authority is executed and delivered on the date indicated.
Dated: April 15, 1998
[Seal]
~-.-
I<;:<,:,:':i;_(.~':.~ El Corte Ingles, S. A.
'... .....:.
r-~ ..
! -:-.... I , _ '\
Ij:"r~._.,_!.s:-.__.-.:_' . ,,' / .
I ~_._. ._.....,,''-'''~ l .-//;./., _ / ,_
'. . --/ (./ '., ," /{
~ l __-- . . .,'....:t~.. ".-~,~...~ '-- i
\. z..___ v :~ I ,-~' " . . ~
" - I
~ '..Y'-~ .-.
'":-..~;:::;::.:!:f.!f7/
Carlos Martinez Echavarria
Executive Director of the Board
98-126
Exhibit "A"
P;'RCi::L NO.1:
PARCEL 12 OF P,\RCEL HAP NO. 68S, Iti THE: CITY OF S;;.N BERNA?.DIt:':l, COUtl7Y OF S.1l..N
BERW".ROINO, STli.'l'E OF C?-.t.IFO?NIr.,.;"S PE:R }L~p RZCO?DEO IN BOO;';' 2~ 0:' P;'~CEL K:"'?S, ?;"':;:S
<7 '1'0 56 INCLUSIVE, IN THE: OFFIC:; 0:: 'IHZ COUrl'Z'X' F.ZCORDER OF S;'.ID COU~:!'~.
P;'RCi::L 110. 2:
'rHOSE CERTAIN ~;ON-EXCLUSIVE E.~.SEHEI1TS U?O~:, OVER, UNDER l\NO ;'.CROSS 'rH~ L}l.ND .DESCR.IS2:J
^l\D FOR ~HE USE 1\NO PURPOSES OEFIN:::O BY ARTICr-E V OF ':L'Hn."Z' C::;J.r.;nl DECL;..;~NrIO~: OF
nESTRIC'XIO:lS, CO:.fSTRUCTION, O?ZAATIOrl, RESTRIC'!'!ON AND E;'.SEXE:li!' .AG?EE~:':;Wr, EXZCUT~!J
BY THE RZDEVELO?HENT AGENCY OF THE: CITY OF S~.=' aE?..n~.RDIHO, C;'.!..!FORN!A, ET JI..L., O.:'.7'Eu
DECEH3ER 24, 1970 AND RECORDED DEC:::H3ER 2~, 1970 nl 500K 7SeO PACE 280, OFFICIA!.
RECORDS.
PARCEL NO.3:
. ALL Tr.OSE E?-.SEHENTS FOR HALLS, FOOTInGS, FOUNDi\7IONS ^ND SU3S:i?:-;'CE SU??ORT, J\N!J
UTILITY Fl\CILITIES OF' 'ZH=: "HARRIS BUILDING" j;S G~.N'I'E:O, AND HO?::: :p~.R"i'ICULARLY
D~SCRIB==O AND DE:INEO BY THE: FO!.LOrl'Il{G INS'l'Ru!-:::m:s RECORO!:O If: THE O~FrCE OF' '!'H'::
COUNTY P~COROE?- 0:. THE COUNTY 0:: S;:"N BERNARDINO;
A. r.CRZE!-!Z!'f'!' E~:!'ERZO INTO O~l SE?'!'EE3ER 15, 1971 BY r.ND BE:T;';;:2~1 THE H^-~_'US COXPr.N::", r.
C;..L.IFO?l1IA COR?O?3i.TION, ;'.ND THE ?...E:CEVELO?HENl' r.G::~:C':" 0: 'ZHE CZ7t 0:- S;'.~i BERN)..?q!1;O,
C;'..!...IFO?N!;" }I._NO R:::CO?..DEO ON OCTOS!R 21, 1971 XN EOO::: 7278, 0: O;:ZC!AL ?::CO?.DS, P;'.CS
5Q~.
B. ;'.GREE~..E'l"i'l' Et-;!'E:?ZD :r~lJ:O ON SE?TE~.(aER 30, 1971 BY ;A.NO EE7i;:E2~i 'l'r.E r..::'.~?IS CO~~?;..~:~.
r.NS! J'O::~i S. GRIFFITH AND CO!-IPAW:', r. CO??O?-::'.TrO~, r.NO CURC::::-'!'i.1~:i:::R CO~?;'.NY, r.
?.?-_~.'!N:;;?.S;'!I?, .:J'OItiT V:;;NTURES UNDER TH:: Ur._"t::: AND SrYL:: OF C::NT?_~.!.. CITY CO:{?ANY', ;:'.~iD,
CO)l~;EC:'ICUT c.;::NE:?_:'.L }:O?'tG~.GE AND ?2;:'.r/I'Y' INVESTP.~NTS, ;.. K.:'.SSAC::iJSSs'7TS BUSINESS 'Z"?:;S7,
;:'.ND P.zCO?DEO O~l OC!'03E::\ 21., 1971 Ir-; BOO':-: 7276 0: O:FIC!;'~ R~CO;:;i:)S, ?~.G::: SS9.