HomeMy WebLinkAboutCDC/2000-39
1
2
3
4
5
6
7
8
RESOLUTION NO. CDC/2000-39
A RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO
APPROVING AND AUTHORIZING THE EXECUTIVE
DIRECTOR OF THE REDEVELOPMENT AGENCY TO
EXECUTE AMENDMENT NO. 1 TO THE LOAN
AGREEMENT BY AND AMONG THE REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO, THE
JORDAN AND HILDA GRINKER F AMIL Y TRUST AND
SOUTHERN CALIFORNIA PRIVATE SCHOOLS AND
CONSENTING TO ASSIGNMENT OF THE LOAN
AGREEMENT TO HARRY WILLIAM PRUITT, SR.
WHEREAS, the Community Development Commission of the City of San
9 Bernardino (the "Commission") is the governing body ofthe Redevelopment Agency of the City of
10 San Bernardino (the "Agency"), a public body corporate and politic, organized and existing pursuant
11 to the Community Redevelopment Law (California Health and Safety Code Section 33000, et seq.);
12 and
13
14
WHEREAS, the Agency and The Jordan and Hilda Grinker Family Trust" and
15 Southern California Private Schools, a California non-profit corporation (together, the "Borrower")
16 previously entered into that certain Loan Agreement dated as of July 1, 1999 (the "Loan
17 Agreement") pursuant to which the Agency is to make a loan in the amount of Fifty Thousand
18 Dollars ($50,000.00) (the "Loan") to the Borrower for Tenant Improvements (as that term is defined
19 in the Loan Agreement) to property located at 265 North "D" Street, San Bernardino, California (the
20 "Property"); and
21
22
WHEREAS, The Jordan and Hilda Grinker Family Trust was the owner of the
23 Property at the time the Loan Agreement was entered into but has subsequently sold the Property;
24 and
25
26
WHEREAS, the Property is now owned by Harry William Pruitt, Sr. (the "Property
27 Owner"); and
28
SBEO/000IIDOC/4190
10/11100 400 drh
CDC/2000-39
1
WHEREAS, The Jordan and Hilda Grinker Family Trust desires to assign all of its
2 right, title and interest in and to the Loan Agreement to the Property Owner; and
3
4 WHEREAS, the Property Owner is willing to assume the duties, responsibilities and
5 obligations of The Jordan and Hilda Grinker Family Trust under the Loan Agreement, including but
6 not limited to applying the proceeds of the Loan solely to effecting the Tenant Improvements and
7 repaying the Loan in accordance with the terms set forth in Section 4 of the Loan Agreement and
8 in the Promissory Note dated July 1, 1999 evidencing the Loan (the "Promissory Note"), which
9 Promissory Note has been assumed by the Property Owner pursuant to that certain Assumption of
10 Debt dated September 26, 2000; and
11
12 WHEREAS, Section 9 of the Loan Agreement provides that the Borrower is not
13 entitled to, and shall not, assign its rights and obligations under the Loan Agreement; and
14
15
WHEREAS, in order for The Jordan and Hilda Grinker Family Trust to assign its
16 right, title and interest in and to the Loan Agreement to the Property Owner and to provide for the
17 assumption of the responsibilities, duties and obligations of The Jordan and Hilda Grinker Family
18 Trust by the Property Owner, the Agency and the Borrower desire to amend the Loan Agreement
19 to provide for the proposed assignment and enter into that certain Amendment No. 1 to the Loan
20 Agreement attached hereto and incorporated herein by this reference as Exhibit "A" ("Amendment
21 No.1").
22
23
NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION
24 ACTING ON BEHALF OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
25 BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS:
26
27
28
SBEO/0001/DOC/4190
10/11/00 400 drh
CDC/2000-39
1
Section 1.
The Commission hereby approves Amendment No.1 attached hereto
2 as Exhibit "A".
3
4
Section 2.
The Executive Director of the Agency is hereby authorized to execute
5 Amendment No.1 on behalf of the Agency in substantially the form attached hereto, together with
6 such changes therein as may be approved by the Executive Director and Agency Special Counsel.
7 The Executive Director or such other designated representative ofthe Agency is further authorized
8 to do any and all things and take any and all actions as may be deemed necessary or advisable to
9 effectuate the purposes of Amendment No.1.
10
11
Section 3.
The Executive Director ofthe Agency is hereby authorized to execute
12 a consentto an assignment of the Loan Agreement from The Jordan and Hilda Grinker Family Trust
13 to the Property Owner, in such form as may be approved by the Executive Director and Agency
14 Special Counsel.
15 I I I
16 III
17 III
18 III
19 III
20 III
21 III
22 III
23 III
24
25
26
27
28
SBEO/OOO I/DOC/4190
10/11/00 400 drh
CDC/2000-39
1 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY
OF SAN BERNARDINO APPROVING AND AUTHORIZING THE EXECUTIVE
2 DIRECTOR OF THE REDEVELOPMENT AGENCY TO EXECUTE AMENDMENT NO.1
TO THE LOAN AGREEMENT BY AND AMONG THE REDEVELOPMENT AGENCY OF
3 THE CITY OF SAN BERNARDINO, THE JORDAN AND HILDA GRINKER FAMILY
TRUST AND SOUTHERN CALIFORNIA PRIVATE SCHOOLS AND CONSENTING TO
4 ASSIGNMENT OF THE LOAN AGREEMENT TO HARRY WILLIAM PRUITT, SR.
5
Section 4.
This Resolution shall become effective immediately upon its adoption.
6
7
8
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community
Development Commission of the City of San Bernardino at a Joint Regular meeting thereof,
9
held on the 6th
10
11
Commission
12 ESTRADA
LIEN
13 MCGINNIS
SCHNETZ
14 SUAREZ
ANDERSON
15 McCAMMACK
16
day of November
, 2000, by the following vote, to wit:
AYES
X
X
X
NAYS
ABSTAIN ABSENT
X
November ,2000.
X
X
X
The foregoing Resolution is here appr
SBEO/000J/DOC/4190
lOll 1/00 400 drh
CDC/2000-39
1 STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss
2 CITY OF SAN BERNARDINO )
3 I, Secretary of the Community Development
Commission of the City of San Bernardino, DO HEREB Y CERTIFY that the foregoing and attached
4 copy of Community Development Commission of the City of San Bernardino Resolution
No. is a full, true and correct copy of that now on file in this office.
5
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal
6 of the Community Development Commission of the City of San Bernardino this day of
,2000.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Secretary of the
Community Development Commission
of the City of San Bernardino
SBEO/OOO 1/DOC/4190
10111/00 400 drh
CDC/2000-39
EXHIBIT "A"
AMENDMENT NO.1 TO
LOAN AGREEMENT
(THE JORDAN AND HILDA GRINKER F AMIL Y TRUST AND
SOUTHERN CALIFORNIA PRIV ATE SCHOOLS)
THIS AMENDMENT NO.1 is entered into this _ day of _,2000, by and
between the Redevelopment Agency of the City of San Bernardino, a public body, corporate and
politic (the "Agency") and The Jordan and Hilda Grinker Family Trust and Southern California
Private Schools, a California nonprofit corporation ("Southern California Private Schools") (The
Jordan and Hilda Grinker Family Trust and Southern California Private Schools being hereinafter
from time to time referred to collectively as the "Borrower").
WHEREAS, the Agency and the Borrower previously entered into that certain Loan
Agreement dated as of July 1, 1999 (the "Loan Agreement") pursuant to which the Agency is to
make a loan in the amount of Fifty Thousand Dollars ($50,000.00) (the "Loan") to the Borrower for
Tenant Improvements (as that term is defined in the Loan Agreement) to property located at 265
North "D" Street, San Bernardino, California (the "Property"); and
WHEREAS, The Jordan and Hilda Grinker Family Trust owned the Property at the
time the Loan Agreement was entered into but has subsequently sold the Property; and
WHEREAS, the Property is now owned by Harry William Pruitt, Sr. (the "Property
Owner"); and
WHEREAS, The Jordan and Hilda Grinker Family Trust desires to assign all of its
right, title and interest in and to the Loan Agreement to the Property Owner pursuant to an
Assignment of Loan Agreement substantially in the form attached to this Amendment No.1 as
Exhibit "A" (the "Assignment Agreement"); and
WHEREAS, the Property Owner is willing to assume the duties, responsibilities and
obligations of The Jordan and Hilda Grinker Family Trust under the Loan Agreement pursuant to
the Assignment Agreement, including but not limited to applying the proceeds of the Loan solely
to effecting the Tenant Improvements and repaying the Loan in accordance with the terms set forth
in Section 4 of the Loan Agreement and in the Promissory Note dated July 1, 1999 evidencing the
Loan (the "Promissory Note"), which Promissory Note has been assumed by the Property Owner
pursuant to that certain Assumption of Debt dated September 26, 2000; and
WHEREAS, the Property Owner is willing to secure Borrower's repayment of the
Loan with a deed of trust on the Property and an assignment of the lease dated May 15,1999 by and
between The Jordan and Hilda Grinker Family Trust as lessor and Southern California Private
SBEO/OOOIIDOC/4191
10/11100 400 drh
CDC/200Q-39
WHEREAS, Section 9 of the Loan Agreement provides that the Borrower is not
entitled to, and shall not, assign the Borrower's rights and obligations under the Loan Agreement;
and
WHEREAS, the Agency and the Borrower desire to amend the Loan Agreement to
allow The Jordan and Hilda Grinker Family Trust and the Property Owner to enter into the
Assignment Agreement.
NOW, THEREFORE, in consideration of the premises and such other good and
valuable consideration receipt of which is hereby acknowledged, the parties hereto agree as follows:
Section 1. Except as hereby amended, the Loan Agreement is in all respects
ratified and confirmed and all of the terms, provisions and conditions thereof shall be and remain
in full force and effect.
Section 2. Except as otherwise provided herein, all terms not otherwise defined
in this Amendment No.1 shall have the same meanings in this Amendment No.1 as those terms are
given in the Loan Agreement.
Section 3.
Section 9 of the Loan Agreement is amended in its entirety to read as
follows:
"The Agency shall be entitled to assign its rights and obligations
under this Agreement upon consent by the Borrower to such
assignment, which consent shall not unreasonably be withheld. The
Borrower shall not be entitled to, and shall not, assign its rights and
obligations under this Agreement; provided, however, that The
Jordan and Hilda Grinker Family Trust may assign its rights and
obligations under this Agreement to a subsequent purchaser of the
Property, upon consent by the Agency to such assignment, which
consent shall not unreasonably be withheld."
Section 4. This Amendment No. 1 may be executed in counterparts, each of
which shall be an original, and all of which shall constitute but one and the same instrument.
SBEO/000I/DOC/4191
10/11/00400 drh
CDC/2000-39
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment
No.1 as of the date first above written.
REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO
By:
ATTEST:
Agency Secretary
APPROVED AS TO FORM AND
LEGAL CONTENT:
Agency Special Counsel
THE JORDAN AND HILDA GRINKER FAMILY
TRUST
By:
Jordan Grinker, Trustee
By:
Hilda Grinker, Trustee
SOUTHERN CALIFORNIA PRIVATE SCHOOLS,
a California nonprofit corporation
By:
President
By:
Secretary
SBEO/000I/DOC/4191
10/11/00 400 drh
CDC/2000-39
ASSIGNMENT OF LOAN AGREEMENT
THIS ASSIGNMENT OF LOAN AGREEMENT ("Agreement") dated as of October
1,2000, is entered into by and between The Jordan and Hilda Grinker Family Trust (the "Assignor")
and Harry William Pruitt, Sr. ("Assignee").
WHEREAS, the Assignor and Southern California Private Schools, a California
nonprofit corporation ("Southern California Private Schools") entered into that certain Loan
Agreement dated as of July 1, 1999 (the "Loan Agreement') with the Redevelopment Agency of the
City of San Bernardino (the "Agency"); and
WHEREAS, pursuant to the Loan Agreement the Agency is to make a loan in the
amount of Fifty Thousand Dollars ($50,000.00) (the "Loan") to the Assignor and Southern
California Private Schools for Tenant Improvements (as that term is defined in the Loan Agreement)
to that certain property located at 265 North "D" Street, San Bernardino, California and more
specifically described in Exhibit "A" hereto attached hereto and by this reference incorporated herein
(the "Property"); and
WHEREAS, Assignor owned the Property at the time the Loan Agreement was
entered into but has subsequently sold the Property; and
WHEREAS, Assignee is now the owner of the Property; and
WHEREAS, Assignor desires to assign all of its right, title and interest in and to the
Loan Agreement to Assignee; and
WHEREAS, Assignee is willing to assume the duties, responsibilities and obligations
of Assignor under the Loan Agreement, including but not limited to applying the proceeds of the
Loan solely to effecting the Tenant Improvements and repaying the Loan in accordance with the
terms set forth in Section 4 of the Loan Agreement and in the Promissory Note dated July 1, 1999
evidencing the Loan (the "Promissory Note"), which Promissory Note has been assumed by the
Assignee pursuant to that certain Assumption of Debt dated September 26, 200; and
WHEREAS, Assignee is willing to secure its obligation to repay the Loan to the
Agency by executing and delivering a deed of trust, security agreement, assignment of rents and
fixture filing substantially in the form attached hereto as Exhibit "B" (the "Deed of Trust") and an
assignment of leases and rents with respect to the existing lease of the Property to Southern
California Private Schools, a California nonprofit corporation, substantially in the form attached
hereto as Exhibit "c" (the "Assignment of Leases and Rents").
NOW, THEREFORE, in consideration ofthe premises and other good and valuable
consideration, receipt of which is hereby acknowledged, the parties hereto agree as follows:
SBEO/OOO 1 IDOC/4188
10/11/00 400 drh
CDC/2000-39
Section 1. Assignor hereby assigns to Assignee all of Assignor's right, title and interest
in and to the Loan Agreement.
Section 2. Assignee hereby accepts the assignment of Assignor's right, title and interest
in and to the Loan Agreement. Assignee hereby assumes, and accepts and agrees to perform and
discharge, the duties, responsibilities and obligations imposed upon the Assignor under the Loan
Agreement, including but not limited to applying the proceeds of the Loan solely to effecting the
Tenant Improvements and repaying the Loan in accordance with the terms set forth in Section 4 of
the Loan Agreement and in the Promissory Note.
Section 3. Assignee hereby agrees that it shall execute and deliver the Deed of Trust and
that it shall execute and deliver the Assignment of Leases and Rents.
Section 4. This Agreement contains the entire understanding and agreement of the parties
with respect to its subject matter and supersedes all prior and contemporaneous agreements and
understandings.
Section 5.
This Agreement shall be governed by the laws of the State of California.
Section 6. In the event that anyone or more of the sentences, clauses, paragraphs or
sections contained herein is declared invalid, void or illegal, the same shall be deemed severable
from the remainder of this Agreement and shall not affect, impair or invalidate any of the remaining
phrases, sentences, clauses, paragraphs or sections contained herein.
Section 7. This Agreement may be executed by the parties in counterparts, and when
executed by each of the parties, each counterpart shall be deemed to be a part of the same instrument.
SBEO/000I/DOC/4188
10/11/00400 drh
CDCj2000-39
The parties hereto have caused this Agreement to be executed by their authorized
representatives as set forth below.
ASSIGNOR
THE JORDAN AND HILDA GRINKER F AMIL Y
TRUST
By:
Trustee
ASSIGNEE
Harry William Pruitt, Sr.
ACKNOWLEDGED BY:
Southern California Private Schools, a
California nonprofit corporation
By:
President
By:
Secretary
SBEO/OOO I /DOC/4188
10/11/00 400 drh
)
)
)
)
)
)
)
)
)
)
San Bernardino, California 92401 )
Attn:Director,Business Recruitment,)
Retention and Revitalization )
RECORDING REQUESTED BY:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
AND WHEN RECORDED MAIL TO:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
201 North "E" Street, Suite
301
(Space Above for Recorder's Use)
DEED OF TRUST. SECURITY AGREEMENT. ASSIGNMENT OF RENTS
AND FIXTURE FILING
This Deed of Trust, Security Agreement, Assignment of
Rents and Fixture Filing is dated as of October 1, 2000, and is
made by Harry William Pruitt, Sr., hereinafter called "Trustor,"
whose address is [TO COME], to Lawyers Title Company, hereinafter
referred to as "Trustee", whose business address is 1845 Business
Center Drive, Suite 200, San Bernardino, California 92408, in favor
of REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, hereinafter
referred to as "Beneficiary", whose business address is 201 North
"E" Street, Suite 301, San Bernardino, California 92401.
Trustor irrevocably grants, transfers, and assigns to
Trustee in trust, with power of sale, the following described real
property, together with all existing or subsequently erected or
affixed buildings, improvements and fixtures; all easements, rights
of way and appurtenances and all other rights, royal ties and
profi ts relating to the real property, including and without
limitation all minerals, oil, gas, geothermal and similar matters,
located in the City of San Bernardino, County of San Bernardino,
State of California and more particularly described in Exhibit "A"
hereto, together with the rents, issues and profits thereof,
subject however to the right reserved by Trustor in Paragraph B-17
hereof to collect and apply such rents, issues and profits, prior
to any default hereunder; for the purpose of securing performance
in a timely manner of all of Trustor's obligations under that
certain Assignment of Loan Agreement dated as of October 1, 2000,
by and among The Jordan and Hilda Grinker Family Trust, Southern
California Private Schools, a California nonprofit corporation
("Southern California Private Schools") and Trustor, pursuant to
which Trustor acquired all of the right, title and interest of, and
SBEO/0001/DOC/4187
10/11/00 400 drh
assumed all the obligations of, The Jordan and Hilda Grinker Family
Trust under that certain Loan Agreement dated as of July 1, 1999,
by and among The Jordan and Hilda Grinker Family Trust, Southern
California Private Schools and the Beneficiary; payment of the
indebtedness evidenced by a Promissory Note executed by The Jordan
and Hilda Grinker Family Trust and by Southern California Private
Schools, in the principal sum of Fifty Thousand Dollars
($50,000.00), payable to Beneficiary, and assumed by Trustor
pursuant to that certain Assumption of Debt dated September 26,
2000; and all of Trustor's obligations under that certain
Assignment of Leases and Rents dated as of October 1, 2000, each
executed in connection with this Deed of Trust.
A. To protect the security of this Deed of Trust, Trustor agrees:
i. To maintain the property in good condition and
repair; not to remove or demolish any building or
improvement thereon; to complete promptly in
workmanlike manner any improvement hereafter
constructed thereon and to restore promptly in
workmanlike manner any improvement thereon that is
damaged or destroyed, and to pay when due all costs
incurred therefor or in connection therewith; to
comply with all laws, ordinances, regulations,
covenants, conditions and restrictions affecting
the property; not to commit or permit any waste
thereof or any act upon the property in violation
of law or of covenants, conditions or restrictions
affecting the property.
ii. To appear in and defend any action or proceeding
purporting to affect the security hereof or the
rights or powers of Beneficiary or Trustee; and
also, if at any time Beneficiary or Trustee is a
party to or appears in any such action or
proceeding, or in any action or proceeding to
enforce any obligation hereby secured, to pay all
costs and expenses paid or incurred by them or
either of them in connection therewith, including,
but not limited to, cost of evidence of title and
attorneys' fees in a reasonable sum.
iii. To pay (a) at least ten (10) days before
delinquency, all taxes and assessments affecting
the property, all assessment upon water company
stock, and all rents, assessments and charges for
water appurtenant to or used in connection with the
property; (b) when due, all encumbrances, charges
SBEO/0001/DOC/4187
10/11/00 400 drh
and liens, with interest, on the property or any
part thereof, which appear to be prior or superior
hereto; and (c) all costs, fees and expenses of
this trust.
iv. If Trustor fails to make any payment or to do any
act as herein provided, then Beneficiary or Trustee
(but without obligation to do so, and with or
without notice to or demand upon Trustor, and
without releasing Trustor from any obligation
hereof) may (a) make or do the same in such manner
and to such extent as either deems necessary to
protect the security hereof, Beneficiary or Trustee
being authorized to enter upon the property for
such purpose; (b) appear in or commence any action
or proceeding purporting to affect the security
hereof or the rights or powers of Beneficiary or
Trustee; (c) pay, purchase, contest, or compromise
any encumbrance, charge or lien that, in the
judgment of either, appears to be superior hereto;
and in exercising any such power, Beneficiary or
Trustee may incur necessary expenses, including
reasonable attorneys' fees.
v. To pay immediately and without demand all sums
expended hereunder by Beneficiary or Trustee, with
interest from date of expenditure at the annual
rate of two percentage points over Bank of
America's published prime rate.
B. It is mutually agreed that:
1. Any award of damages made in connection with the
condemnation for public use of or injury to the property or any
part thereof is hereby assigned and shall be paid to Beneficiary,
who may apply or release such moneys received therefor upon any
indebtedness secured hereby in such order as Beneficiary
determines, or at the option of Beneficiary the entire amount so
recei ved or any part thereof may be released to Trustor. Such
application or release shall not cure or waive any default or
notice of default hereunder or invalidate any act done pursuant to
such notice.
2. The acceptance by Beneficiary of any payment less
than the amount then due shall be deemed an acceptance on account
only and shall not constitute a waiver of the obligation of Trustor
to pay the entire sum then due or of Beneficiary's right either to
SBEO/0001/DOC/4187
10/11/00 400 drh
require prompt payment of all sums then due or to declare default.
The acceptance of payment of any sum secured hereby after its due
date will not waive the right of Beneficiary either to require
prompt payment when due of all other sums so secured or to declare
default for failure so to pay. No waiver of any default shall be
a waiver of any preceding or succeeding default of any kind.
3. At any time or from time to time, without liability
therefor and with or without notice, upon written request of
Beneficiary and presentation of this deed and the secured note for
endorsement, and without effecting the personal liability of any
person for payment of the indebtedness secured hereby or the effect
of this deed upon the remainder of the property, Trustee may
reconvey any part of the property, consent to the making of any map
or plat thereof, join in granting any easement or join in any
extension agreement or any agreement subordinating the lien or
charge thereof.
4. Upon written request of Beneficiary stating that all
sums secured hereby have been paid, surrender of this deed and the
note to Trustee for cancellation and retention, and payment of its
fees, Trustee shall reconvey, without warranty the property then
held hereunder. The recitals in such reconveyance shall be
conclusive proof of the truthfulness thereof. The grantee may be
designated in such reconveyance as "the person or persons legally
entitled thereto."
5. Trustor may give such notice to Beneficiary at any
time before there is a Trustee's sale of the property. At any time
Trustor is in default in payments to be made to Beneficiary
hereunder, any amounts paid to and received by Beneficiary for
execution of releases pursuant to the terms of this paragraph after
notice of default and election to sell has been recorded shall not,
unless the requirements of Section 2924c of the Civil Code are
fully met by or on behalf of Trustor, waive the right of
Beneficiary to continue its plans to have the property sold, nor
shall they have any effect on the exercise by Beneficiary of the
acceleration privilege contained herein, except to entitle the
person effecting such payment to the release of the property for
which the release amount was paid, and insofar as Beneficiary is
concerned, to constitute a credit against the secured debt.
6. If Trustor or any subsequent owner of the property
covered hereby shall occupy the property, or any part thereof,
after any default in payment of any amount secured by this Deed of
Trust, Trustor or such owner shall pay to Beneficiary in advance on
the first day of each month a reasonable rental for the premises so
occupied. On failure to pay such reasonable rental, Trustor or
SBEO/0001/DOC/4187
10/11/00 400 drh
such owner
dispossession
proceeding.
may be removed from the premises by summary
proceedings or by any other appropriate action or
7. If default is made in payment of any indebtedness or
in performance of any agreement hereby secured, then Beneficiary,
with or without notice to Trustor, may declare all sums secured
hereby immediately due and payable by instituting suit for the
recovery thereof or for the foreclosure of this deed, or by
delivering to Trustee a written declaration of default and demand
for sale, as well as a written notice of default and of election to
cause the property to be sold, which notice Trustee shall cause to
be filed for record. If such declaration is delivered to Trustee,
Beneficiary shall also deposit with Trustee this deed, the secured
note, and all documents evidencing expenditures secured hereby.
8. Should Trustor, without the consent in writing of
Beneficiary, voluntarily sell, transfer or convey his interest in
the property or any part thereof, or if by operation of law, it be
sold, transferred or conveyed, then Beneficiary may, at its option,
declare all sums secured hereby immediately due and payable.
Consent to one such transaction shall not be deemed to be a waiver
of the right to require such consent to future or successive
transactions.
9. After the time then required by law has elapsed
after recordation of such notice of default, and notice of sale
having been given as then required by law, Trustee, with or without
demand on Trustor, shall sell the property at the time and place
fixed in the notice of sale, either as a whole or in separate
parcels and in such order as Trustee determines, at public auction,
to the highest bidder, for cash in lawful money of the United
States, payable at the time of sale. Trustee may postpone from
time to time sale of all or any portion of the property by public
announcement at the time and place of sale originally fixed or at
the last preceding postponed time. Trustee shall deliver to the
purchaser its deed conveying the property sold, but without any
covenant or warranty, express or implied. The recitals in such
deed of any matters or facts shall be conclusive proof of the
truthfulness thereof. Trustor, Trustee, Beneficiary or any other
person may purchase at the sale.
10. After deducting all costs, fees and expenses of
Trustee and of this trust, including cost of evidence of title and
reasonable attorneys' fees in connection with sale, Trustee shall
apply the proceeds of sale to payment of (a) all sums expended
under the terms hereof and not theretofore repaid, with accrued
interest at two percentage points over Bank of America's published
SBEO/0001/DOC/4187
10/11/00 400 drh
prime rate per annum, and (b) all other sums then secured hereby in
such order as Beneficiary, in the exercise of its sole discretion,
directs. The remainder, if any, shall be paid to the person or
persons legally entitled thereto.
11. Before Trustee's sale, Beneficiary may rescind such
notices of default and of election to cause the property to be sold
by delivering to Trustee a written notice of rescission, which
notice, when recorded, shall cancel any prior declaration of
default, demand for sale and acceleration of maturity. The
exercise of such a right of rescission shall not constitute a
waiver of any default then existing or subsequently occurring, or
impair the right of Beneficiary to deliver to Trustee other
declarations of default and demands for sale or notices of default
and of election to cause the property to be sold, or otherwise
affect any provision of the secured note or of this deed or any of
the rights, obligations or remedies of Beneficiary or Trustee
hereunder.
12. The restrictions pertaining to the property will
automatically terminate if title to the mortgaged property is
transferred by foreclosure or deed-in-lieu of foreclosure, or if
the mortgage is assigned to the Secretary of the Department of
Housing and Urban Development.
13. Beneficiary may, from time to time as provided by
statute, or by a writing signed and acknowledged by him and
recorded in the office of the county recorder of the county in
which the land or such party thereof as is then affected by this
Deed of Trust is situated, appoint another trustee in stead and of
Trustee herein named; and thereupon, the Trustee herein named shall
be discharged, and the trustee so appointed shall be substituted as
Trustee hereunder with the same effect as if originally named
Trustee herein.
14. If two or more persons are designated as Trustee
herein, any or all powers granted herein to Trustee may be
exercised by any of such persons if the other person or persons is
unable, for any reason, to act. Any recital of such inability in
any instrument executed by any of such persons shall be conclusive
against Trustor, his heirs and assigns.
15. All leases now or hereafter affecting the property
are hereby assigned and transferred to Beneficiary by Trustor.
Trustor hereby covenants that none of such leases will be modified
or terminated without the written consent of Beneficiary.
SBEO/0001/DOC/4187
10/11/00 400 drh
16. When requested to do so, Trustor shall give such
further written assignments of rents, royalties, issues and
profits; of all security for the performance of leases; and of all
money payable under any option to purchase, and shall give executed
originals of all leases, now or hereafter on or affecting the
property.
17. Trustor reserves the right, prior to any default in
payment of any indebtedness or performance of any obligation
secured hereby, to collect all such rents, royalties, issues and
profits, as but not before they become due. Upon any such default,
Trustor's right to collect such moneys shall cease, not only as to
amounts accruing thereafter, but also as to amounts then accrued
and unpaid. In the event of default, Beneficiary, with or without
notice and without regard to the adequacy of security for the
indebtedness hereby secured, either in person or by agent, or by a
receiver to be appointed by the court, (a) may enter upon and take
possession of the property at any time and manage and control it in
Beneficiary's discretion, and (b) with or without taking
possession, may sue for or otherwise collect the rents, issues and
profits thereof, whether past due or coming due thereafter, and
apply the same, less costs and expenses of operation and
collection, including reasonable attorneys' fees, upon any
obligation secured hereby and in such order as Beneficiary
determines. None of the aforesaid acts shall cure or waive any
defaul t hereunder or invalidate any act done pursuant to such
notice. Beneficiary shall not be required to act diligently in the
care or management of the property or in collecting any rents,
royalties or other profits that it is hereby authorized to collect,
and shall be accountable only for sums actually received.
18. This instrument shall constitute a security
agreement to the extent any of the property constitutes fixtures,
and Beneficiary shall have all of the rights of a secured party
under the Uniform Commercial Code as amended from time to time.
The mailing addresses of Trustor (debtor) and Beneficiary (secured
party), from which information concerning the security interest
granted by this Deed of Trust may be obtained (each as required by
the Uniform Commercial Code), are as stated on the first page of
this Deed of Trust.
19. Without affecting the liability of Trustor or of any
other party now or hereafter bound by the terms hereof, from time
to time and with or without notice, may release any person now or
hereafter liable for performance of such obligation, and may extend
the time for payment or performance, accept additional security,
and alter, substitute or release any security.
SBEO/0001/DOC/4187
10/11/00 400 drh
20. In any judicial action brought to foreclose this
deed or to enforce any right of Beneficiary or of Trustee
hereunder, Trustor shall pay to Beneficiary and to Trustee
attorneys' fees in a reasonable sum, to be fixed by the court.
21.
exclusi ve of
future law.
No remedy hereby given to Beneficiary or Trustee is
any other remedy hereunder or under any present or
defense
waived,
22.
to any
to the
The pleading of any statute of limitations as a
and all obligations secured by this deed is hereby
full extent permissible by law.
23. In the event of default in the payment of any
indebtedness secured hereby, and if such indebtedness is secured at
any time by any other instrument, Beneficiary shall not be
obligated to resort to any security in any particular order; and
the exercise by Beneficiary of any right or remedy with respect to
any security shall not be a waiver of or limitation on the right of
Beneficiary to exercise, at any time or from time to time
thereafter, any right or remedy with respect to this deed.
24. Beneficiary may collect a "late charge" not to
exceed an amount equal to five percent (5%) on the amount past due
and remaining unpaid on any installment that is not paid within
five (5) days from the due date thereof, to cover the extra expense
involved in handling delinquent payments.
25. This deed applies to, inures to the benefit of and
binds all parties hereto, their heirs, legatees, devisees,
administrators, executors, successors, successors in interest, and
assigns. The term "Beneficiary" means the owner and holder,
including pledgees, of the note secured hereby, whether or not
named as Beneficiary herein. In this deed, whenever the context so
requires, the masculine gender includes the feminine and neuter,
and the singular number includes the plural, and all obligations of
each Trustor hereunder are joint and several.
26. Trustee accepts this trust when this deed, duly
executed and acknowledged, is made a public record as provided by
law. Trustee is not obligated to notify any party hereto of
pending sale under any other deed of trust or of any action or
proceeding in which Trustor, Beneficiary or Trustee is a party
unless brought by Trustee.
SBEO/0001/DOC/4187
10/11/00 400 drh
Trustor requests that a copy of notice of default and of
any notice of sale hereunder shall be mailed to Trustor at the
address set forth immediately below.
Harry William Pruitt, Sr.
[ADDRESS TO COME]
Executed at San Bernardino, California, on the date first
above written.
TRUSTOR
Harry William Pruitt, Sr.
[SIGNATURE MUST BE NOTARIZED]
SBEO/0001/DOC/4187
10/11/00 400 drh
EXHIBIT A
LEGAL DESCRIPTION
PARCEL 1: Parcel 2 of Parcel Map 9996 as per Map recorded in Book 122, Page 52 and 53 of
Parcel Maps records of San Bernardino County, CA.
PARCEL 2: Non-Esclusive Easements for Ingress, Egress, Parking and Drainage, over and across
Parcell of parcel Map 9996 as per Parcel Map recorded in Book 12, Pages 52 and 53 of Parcel Maps
records of San Bernardino County, CA.
SBEO/0001/DOC/4187
10/11/00 400 drh
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Redevelopment Agency of
the City of San Bernardino
201 North "E" Street
Suite 301
San Bernardino, California 92401
Attention:Director, Business
Recruiting, Retention
and Revitalization
ASSIGNMENT OF LEASES AND RENTS
This Assignment of Leases and Rents ("Assignment") is
dated as of October 1, 2000 and is made by Harry William Pruitt,
Sr., (the "Assignor"), whose address is [TO COME] in favor of
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("Agency"),
whose business address is 201 North "E" Street, Suite 301, San
Bernardino, California 92401.
WHEREAS, Agency has agreed to make a loan in an original
principal amount not to exceed Fifty Thousand Dollars ($50,000.00)
(the "Loan") to Assignor and to Southern California Private
Schools, a California nonprofit corporation, the lessee (the
"Lessee") under that certain lease dated May 15, 1999 (the "Private
Schools Lease") pursuant to which Assignor, as landlord, has
leased to Lessee the premises located at 265 North "0" Street, San
Bernardino, California and more particularly described in Exhibit
"A" hereto (the "Property"), for the purpose of effecting tenant
improvements with respect to the Property to make it suitable for
the operation of a day care center. The Loan is being made
pursuant to that certain Loan Agreement dated as of July 1, 1999,
by and among The Jordan and Hilda Grinker Family Trust, Southern
California Private Schools, a California nonprofit corporation
("Southern California Private Schools") and the Agency (the "Loan
Agreement") and that certain Assignment of Loan Agreement dated as
of October 1, 2000 (the "Assignment of Loan Agreement") by and among
Assignor, Southern California Private Schools and the Agency,
pursuant to which Assignor acquired all of the right, title and
interest of, and assumed all the obligations of, The Jordan and
Hilda Grinker Family Trust under the Loan Agreement. The Loan is
evidenced by a Promissory Note dated July 1, 1999, in the original
SBEO/0001/DOC/4187
10/11/00 400 drh
principal amount of the Loan, which Promissory Note was assumed by
Assignor pursuant to that certain Assumption of Debt dated
September 26, 2000 (the "Note"), which Note is secured by (i) this
Assignment and (ii) a Deed of Trust With Assignment of Rents (the
"Deed of Trust") dated concurrently herewith and encumbering the
Property together with all improvements now or hereafter
constructed thereon.
WHEREAS, execution and delivery of this Assignment to
Agency is a condition of Agency making the Loan.
NOW, THEREFORE, for good and valuable consideration,
receipt of which is hereby acknowledged, Assignor hereby agrees as
follows:
absolutely
Agency:
1. Assignment.
and irrevocably
For value
conveys,
received,
transfers
Assignor hereby
and assigns to
(a) All of Assignor's right, title and interest in
any and all existing or future leases, including the Private
Schools Lease, subleases, licenses, concessions or other
agreements which demise or grant a possessory interest in or
the right to use all or a portion of the Property
(collectively, the "Leases"), together with all extensions,
replacements and renewals of the Leases and all guarantees of
and security for the obligation of any and all tenants
(collectively, and including the Lessee, the "Tenants") under
the Leases.
(b) All of Assignor's right, title and interest to
collect and receive all of the rents, income, and profits now
due or which may become due or to which Assignor may now or
hereafter become entitled or which Assignor may make demand or
claim for, arising or issuing from or out of the Leases or
from or out of the Property or any part thereof, including but
not limited to minimum rents, additional rents, percentage
rents, parking or common area maintenance contributions, tax
and insurance contributions, deficiency rents and liquidated
damages following default in any Lease, and all proceeds
payable under any policy of insurance covering loss of rents
resulting from untenantability caused by destruction or damage
to the Property, together with any and all rights and claims
of any kind which Assignor may have against any Tenant under
the Leases or any subtenants or occupants of the Property (all
such monies, rights and claims described in this paragraph
hereinafter referred to as "Rents").
SBEO/0001/DOC/4187
10/11/00 400 drh
The foregoing assignment, transfer and conveyance is
intended to be and constitutes a present and absolute assignment,
transfer and conveyance by Assignor to Agency.
2. Obligations Secured. This Assignment is given for
the purpose of securing:
(a) Payment of all sums, with interest thereon,
becoming due and payable to Agency under the provisions hereof
or under the provisions of the Note, the Loan Agreement, the
Assignment of Loan Agreement or the Deed of Trust (and
renewals, modifications, changes or extensions thereof); and
(b) Payment of additional sums and interest thereon
which may hereafter be loaned by Agency to Assignor, when
evidenced by a promissory note or notes reciting that same are
secured by this Assignment and the Deed of Trust; and
Assignor's
to Agency
Agreement,
Trust.
(c) Performance and observance of each of
obligations, covenants, conditions and warranties
contained herein, in the Note, in the Loan
the Assignment of Loan Agreement and in the Deed of
3. Covenants of Assignor. To protect the security of
this Assignment, Assignor covenants and agrees:
(a) To perform each of its obligations under the
Leases; at its sole cost and expense, to use commercially
reasonable efforts to enforce or secure the performance by
Tenants of each obligation under the Leases; and not to waive
or release any Tenant of or from its obligations. Assignor
assigns to Agency all Assignor's right and power to modify in
any material respect the terms of the Leases subj ect to
Assignor's rights hereinafter set forth. Any attempt on the
part of Assignor to exercise any such right without the
written consent of Agency, shall be a breach of the terms
hereof.
(b) To defend at Assignor's sole cost any action in
any manner connected with the Leases or the obligations
thereunder, and to pay all costs of Agency, including
attorney's fees in a reasonable sum, in any such action in
which Agency may appear.
(c)
provided, the
without notice
If Assignor fails to do any act as herein
Agency, but without obligation so to do and
to Assignor, and without releasing Assignor
SBEO/0001/DOC/4187
10/11/00 400 drh
from any obligation hereof, may take action in such manner and
to such extent as Agency may deem necessary to protect the
security described herein. These actions include
specifically, without limiting Agency's general powers, the
defense of any action purporting to affect the security
described herein or the rights or powers of Agency, and also
the performance of each obligation of Assignor set forth in
the Leases. In exercising such powers, Agency may employ
attorneys and other agents, and pay necessary costs and
reasonable attorneys' fees. Assignor agrees to give prompt
notice to Agency of any default of any Tenant and of any
notice of default on the part of the Assignor with respect to
the Leases received from a Tenant, together with an accurate
and complete copy thereof.
(d) To pay immediately to Agency upon demand all
sums expended by Agency under the authority hereof, including
reasonable attorneys' fees and costs, together with interest
thereon at the then applicable interest rate payable on the
Note and such sums shall be added to Assignor's indebtedness
and shall be secured hereby and by the Deed of Trust.
4. Assianor's Warranties. Assignor represents and
warrants to Agency that: (a) Assignor has not executed any other or
prior assignment of the Leases or the Rents accruing thereunder
which shall be in effect on or after the funding of the Loan (b)
Assignor has not performed any act or executed any instrument which
might prevent Agency from operating under any of the terms and
condi tions of the Leases, or which would limit Agency in such
operation, or accepted Rent for any period subsequent to the
current one (1) month period for which Rent has already become due
and payable; (c) no default by any of the Tenants or Assignor now
exists under the Leases except as set forth in writing to Agency;
(d) Assignor has not executed or granted any modification whatever
of the Leases, and the Leases are in full force and effect
according to the terms and conditions thereof; (d) Assignor has
good right, title and interest in and to the Leases and Rents
hereby assigned and the right to assign the same, and that no other
person or entity has any right, title or interest therein; and (f)
Assignor has duly and timely performed all of the terms, covenants,
conditions and warranties set forth in the Leases which are to be
kept, observed and performed by Assignor.
5.
agreed that:
Agreement of Assignor and Agency.
It is mutually
(a) So long as there is no (i) uncured default by
Assignor in the payment of any principal or interest due under the
SBEO/0001/DOC/4187
10/11/00 400 drh
Note; (ii) uncured default in the performance or observance of any
of the terms of the Note, the Loan Agreement, the Assignment of
Loan Agreement, the Deed of Trust or any other security instruments
executed in connection with the Note, the Loan Agreement, the
Assignment of Loan Agreement, this Assignment and the Deed of
Trust; or (iii) uncured default in the performance of any
obligation, covenant or agreement herein or in the Leases, Assignor
shall have a license to collect upon, but not prior to accrual, all
rents, issues and profits coming due pursuant to the Leases and to
hold the same as a trust fund (without any obligation for an
accounting or segregation of such trust fund by Assignor) to be
applied prior to default as follows:
First, to the payment of taxes and assessments upon
the Property before any penalty or interest is due thereon;
Second, to the cost of insurance, maintenance,
repairs and any other payments as required by the terms of the Loan
Agreement, Deed of Trust or this Assignment;
Third, to satisfaction of all obligations under the
Leases;
Fourth, to the payment of interest, principal, and
any other sums becoming due under the Note, the Deed of Trust and
this Assignment; and
Fifth, for Assignor's remaining purposes.
(b) As used in the Section 5, "uncured default" means
any event of default by Assignor and failure to cure after notice
and within any applicable cure period under the Note, the Loan
Agreement, the Assignment of Loan Agreement, the Deed of Trust,
this Assignment, the Leases or any other security document executed
in connection with the Note or the Loan Agreement.
(c) Upon the occurrence and continuance of any default,
as described in Paragraph 5(a) hereinabove, the license of Assignor
to collect the Rents shall automatically terminate without notice
to or demand on Assignor and Agency may (i) declare all sums
secured hereby immediately due and payable; (ii) at its option,
wi thout notice either in person or by agent, with or without
bringing any action, or by a receiver to be appointed by a court,
and in addition to all other remedies available to Assignee under
this Assignment, the Loan Agreement, the Assignment of Loan
Agreement or the Deed of Trust and any applicable law (including,
without limitation Section 2938 of the California Civil code) or in
equity, enter, take possession of, manage and operate the Property
SBEO/0001/DOC/4187
10/11/00 400 drh
or any part thereof; (iii) make, cancel, enforce or modify the
Leases; (iv) obtain and evict any Tenants, and fix or modify Rents;
(v) do any acts which Agency deems proper to protect the security
hereof; and (vi) either with or without taking possession of the
Property, in its own name sue for or otherwise collect and receive
all Rents or payments due under the Leases, including those past
due and unpaid, and apply the same, less costs and expenses of
operation and collection, including reasonable attorney's fees,
upon any indebtedness secured hereby, and in such order as Agency
may determine. Notwithstanding Section 2938 (e) (3) of the
California Civil Code, the entering and taking possession of the
Property, the collection of such Rents and payments, and the
application thereof as aforesaid, shall not cure or waive any
default or waive, modify, or affect notice of default under the
Loan Agreement, the Assignment of Loan Agreement, the Deed of Trust
or this Assignment, or invalidate any act done pursuant to such
notice. Further, from and after the automatic termination of
Assignor's license to collect Rents, and notwithstanding anything
to the contrary contained herein or in Section 2938 (c) of the
California Civil Code: (i) all Rents then in Assignor's
possession, together with all Rents collected or distributed in
violation hereof, and all Rents collected or distributed after the
default or Event of Default (or attributable to the period after
the default or Event of Default), shall be deemed held solely in
trust for the benefit of Agency, (ii) Assignor shall immediately
deliver or cause to be delivered to Agency all such Rents; all
Rents then due under the Leases and thereafter accruing shall upon
Agency's written request, be payable by lessees directly to Agency;
and (iii) this Assignment shall constitute a direction to and full
authori ty to the Tenants to pay all Rents to the Agency, upon
Agency's written request, and without proof of the default or Event
of Default relied upon. The Tenants are hereby irrevocably
authorized to rely upon and comply with any notice or demand by
Agency for the payment to Agency of any rental or other sums which
may be or thereafter become due under the Leases, or for the
performance of any Tenants' undertakings under the Leases and shall
have no right or duty to inquire as to whether any default or Event
of Default under the Deed of Trust or the Note has actually
occurred or is then existing.
If, pursuant to Section 2938(g) of the California Civil
Code, Assignor or any other assignee of the Rents makes written
demand upon Agency to pay the reasonable costs of protecting and
preserving the Property (a "2938(g) Demand"), for payment of items
such as taxes and insurance and compliance with building codes, if
any, as specified in such section (collectively, "Preservation
Costs"), then such Preservation Costs shall be deemed to consist
only of the following and only to the extent of Rents actually
SBEO/0001/DOC/4187
10/11/00 400 drh
received by Agency: (i) delinquent real property taxes with respect
to the Property only to the extent that such amounts subject the
Property to an imminent tax sale pursuant to applicable law; (ii)
property damage insurance, and liability insurance in such amounts,
with such insurers and pursuant to such terms as Agency shall have
previously approved for Assignor prior to the default or Event of
Default; provided, however, that Agency shall not be required to
purchase any rental interruption insurance or earthquake insurance,
and (iii) the reasonable cost of compliance with building codes
only to the extent the applicable governmental building authority
makes a written demand to Agency to comply therewith.
Notwithstanding anything to the contrary contained herein, Agency
may (pursuant to such 2938(g) Demand or otherwise), but shall not
be obligated to, payout of such Rents actually received any other
reasonable costs which Agency believes, in its sole discretion, is
necessary for the protection and preservation of the Property (it
being the intent of Assignor and Agency that nothing contained
herein shall be deemed to impair, define or limit Agency's rights
or remedies pursuant to the Deed of Trust, including, but not
limited to, the right of Agency to protect and preserve the
security for the Deed of Trust in the Event of Default thereunder) .
(d) Any default by Assignor in the performance of any
obligation herein contained and acceleration of the indebtedness
secured hereby shall constitute a default under the terms of the
Deed of Trust entitling Agency to all of its rights and remedies
thereunder, including specifically the right to declare a default
thereunder and to elect to sell the property secured by the Deed of
Trust, or, subject and subordinate to the rights of superior trust
deed holders, foreclose the Deed of Trust as provided by law.
(e) Agency shall not be obligated to perform nor does it
hereby undertake to perform any obligation under the Leases or this
Assignment, and Assignor does hereby indemnify against and hold
Agency harmless from any liability, loss or damage under the Leases
or this Assignment and all claims which may be asserted against it
by persons other than Assignor by reason of any alleged obligation
to perform any of the terms in the Leases; should Agency incur any
such liability, loss or damage under the Leases or this Assignment,
or in the defense of any such claims, the amount thereof, including
costs and actual attorney's fees, shall be secured hereby and by
the Deed of Trust, and Assignor shall reimburse Agency therefor
immediately upon demand, and upon failure of Assignor so to do
Agency may declare all sums secured hereby immediately due and
payable.
(f) Until all indebtedness secured hereby has been paid
in full, any subsequent Leases shall be deemed to be assigned to
SBEO/0001/DOC/4187
10/11/00 400 drh
Agency hereby, upon the terms and conditions herein contained, and
Assignor agrees to execute all instruments necessary therefor.
(g) Upon the payment in full of all indebtedness secured
hereby, as evidenced by the reconveyance of the Deed of Trust, this
Assignment shall automatically terminate and shall be of no effect.
In such an event, Agency agrees to execute any document reasonably
necessary to release its interest hereunder, all at no cost to
Agency. The affidavit of any officer of Agency showing any part of
said indebtedness to remain unpaid shall be conclusive evidence of
the validity, effectiveness and continuing force of this
Assignment, and any person may and is hereby authorized to rely
thereon.
(h) This Assignment inures to the benefit of, and binds,
all parties hereto, their heirs, administrators, executors,
successors and assigns. In this Assignment, whenever the context
so requires, the masculine gender includes feminine and neuter, and
the singular number includes plural, and conversely. All
obligations of each Assignor hereunder are joint and several.
(i) Notices shall be presented in person or by certified
or registered United States mail, return receipt requested, postage
prepaid, or by overnight delivery made by a nationally recognized
delivery service to the address noted below. Notice presented by
United States mail shall be deemed effective the second business
day after deposit with the United States Postal Service. This
subsection shall not prevent giving notice by personal service or
telephonically verified fax transmission, which shall be deemed
effective upon actual receipt of such personal service or
telephonic verification. Either party may change their address for
receipt of written notice by so notifying the other party in
writing.
Agency:
REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO
201 North "EN Street
Third Floor
San Bernardino, California 92410
Attention: Director, Business Recruitment,
Retention and Revitalization
Telecopier No.: (909) 888-9413
Assignor:
Harry William Pruitt, Sr.
[TO COME]
SBEO/0001/DOC/4187
10/11/00 400 drh
Attention:
Richard
Schindler,
Member
(j) Agency may take or release other security, may
release any party primarily or secondarily liable for any
indebtedness secured hereby, may grant extensions, renewals or
indulgences with respect to such indebtedness, and may apply any
other security held by it to the satisfaction of such indebtedness
without prejudice to any of its rights hereunder. It is further
agreed that nothing herein contained and no act done or omitted by
Agency pursuant to the powers and rights granted to Agency herein
shall be deemed to be a waiver by Agency of the rights and remedies
possessed by Agency under the terms hereof. The right of Agency to
collect said indebtedness and to enforce any other security
therefor owned by Agency may be exercised either prior to,
simultaneously with, or subsequent to any action taken by Agency
hereunder.
(k) Assignor further covenants and agrees that it shall
not, without the prior written consent of Agency:
(1) Receive or collect any Rents (excluding
securi ty deposits, which security deposits shall not
exceed two (2) months rent) from any present or future
Tenant of the Property or any part thereof for a period
of more than one (1) month in advance (whether in cash or
by promissory note), pledge, transfer, mortgage, grant
and security interest in, or otherwise further encumber
or assign future payments of Rents.
(2) Waive, forgive, excuse, condone, discount, set
off, compromise, or in any manner release or discharge
any Tenant under any Lease of and from any obligations,
covenants, conditions and agreements by such Tenant to be
kept, observed and performed, including the obligation to
pay the Rents thereunder in the manner and at the place
and time specified therein.
(3) Cancel, terminate or consent to any surrender
of any Lease, nor commence any action or any summary
proceedings for dispossession of a Tenant under any
Lease, nor exercise any right of repossession of the
Property provided in any Lease.
(4) Materially modify, alter, amend or otherwise
change any Lease.
SBEO/0001/DOC/4187
10/11/00 400 drh
Assignor shall submit to Agency for Agency's prior
approval of the final written form of any material amendment or
modification to an existing lease by certified mail or overnight
delivery. Agency shall specify the grounds for any disapproval
made by Agency and shall also specify such terms and conditions
under which the Agency would approve such proposed amendment or
modification.
Assignor shall not enter into a new lease or consent to
an assignment or sublease of any existing lease which permits any
use of the Property which is prohibited by the Loan Agreement.
Within five (5) days after executing a new lease or an
amendment or modification to an existing lease, Assignor shall
deliver an executed copy thereof to Agency certifying that such
copy is a true, correct and complete copy of such new lease or
amendment or modification.
(1) This Assignment constitutes an irrevocable direction
and authorization to all Tenants to pay all rents and other amounts
to Agency upon demand from Agency without the necessity of any
further consent or other action by Assignor.
(m) Assignor hereby agrees to indemnify and hold Agency
harmless from any and all liability, loss, damage or expense
(including actual attorneys' fees and costs) which Agency may incur
under or by reason of: (i) any reasonable action taken by Agency to
protect its security hereunder or (ii) defense of any and all
claims and demands whatsoever which may be asserted against Agency
arising out of the Leases, including but not limited to, any claims
by any Tenants of credit for rental for any period under any Lease
more than one (1) month in advance of the due date thereof and
security deposits paid to and received by Assignor, but not
delivered to Agency. Should Agency incur any such liability, loss,
damage or expense, the amount thereof, including reasonable
attorney's fees, with interest thereon at the then applicable
interest rate on the Note, shall be payable by Assignor immediately
upon demand, and shall be secured hereby and by the Deed of Trust.
(n) Agency's failure to avail itself of any of the
rights and remedies set forth in this Assignment for any period of
time or at any time shall not be construed or deemed to be a waiver
of any such right or remedy, and nothing herein contained nor
anything done or omitted to be done by Agency pursuant hereto shall
be deemed a waiver by Agency of any of its rights and remedies
under the Note, the Loan Agreement, the Assignment of Loan
Agreement and the Deed of Trust or of the benefit of the laws of
the State in which the Property is situated. The rights of Agency
SBEO/0001/DOC/4187
10/11/00 400 drh
.
to collect the said indebtedness, to enforce any other security
therefor, or to enforce any other right or remedy hereunder may be
exercised by Agency, either prior to, simultaneously with, or
subsequent to, any such other action hereinbefore described, and
shall not be deemed an election of remedies.
(0) No action taken by Agency in enforcing its rights
under this Assignment shall result in the imposition of personal
liabili ty on any of the members, directors, shareholders and
officers, as applicable, of Assignor, or an Assignor itself or its
constituent members.
(p) If any provision of this Assignment or the
application therefor to any entity, person or circumstance shall be
invalid or unenforceable to any extent, then the remainder of this
Assignment and the application of such provisions to other
entities, persons or circumstances shall not be affected thereby
and shall be enforced to the greatest extent permitted by law.
(q) No variations, modifications
hereof shall be binding unless set forth
executed by Assignor and the Agency.
or changes herein or
in a document duly
(r) This Assignment shall be governed by and construed
in accordance with California law.
6. Reconveyance. The reconveyance of the Deed of Trust by
Agency shall operate as a release of Assignor's obligations
hereunder.
Executed at San Bernardino, California, on the date first
above written.
ASSIGNOR
Harry William Pruitt, Sr.
[SIGNATURE MUST BE NOTARIZED]
SBEO/0001/DOC/4187
10/11/00 400 drh
.
EXHIBIT A
LEGAL DESCRIPTION
PARCEL 1: Parcel 2 of Parcel Map 9996 as per Map recorded in Book 122, Page 52 and 53 of
Parcel Maps records of San Bernardino County, CA.
PARCEL 2: Non-Esclusive Easements for Ingress, Egress, Parking and Drainage, over and across
Parcell of parcel Map 9996 as per Parcel Map recorded in Book 12, Pages 52 and 53 of Parcel Maps
records of San Bernardino County, CA.
SBEO/0001/DOC/4187
10/11/00 400 drh