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HomeMy WebLinkAboutR5- Economic Development ECONOMIC DEVELOPMENT AGENCYw !� OF THE CITY OF SAN BERNARDINO REQUEST FOR COMMISSION/COUNCIL ACTION FROM: RONALD E.WINKLER SUBJECT: HARRIS COMPANY HUD Development Director LOAN DATE: May 13, 1998 ------------------------------------------------------------------------------------------------------------------------------------------- Synopsis of Previous Commission/Council/Committee Action(s): On April 27, 1998,the Redevelopment Committee directed staff and counsel to prepare the necessary documents for Commission/Council approval. ------------------------------------------------------------------------------------------------------------------------------------------- Recommended Motion(s): (Mayor and Common Council) MOTION: 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 ARISING UNDER THE 1995 FLOAT LOAN AGREEMENT AND THE 1995 CITY SECTION 108 LOAN AGREEMENT,AND APPROVING THE FORM OF A 1998 CITY OF SAN BERNARDINO ASSIGNMENT AND LOAN ASSUMPTION AGREEMENT AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE CERTAIN INSTRUMENTS ------------------------------------------------------------------------------------------------------------------------------------------- Contact Person(s): Ronald E.Winkler/John Hoe eg r Phone: 5081 Project Area(s): Meadowbrook/Central City Ward(s): One(1) Supporting Data Attached:❑x Staff Report❑ Resolution(s) ❑ Agreement(s)/Contract(s) ❑ Map(s)❑Ltr/Memo FUNDING REQUIREMENTS: Amount: $ N/A Source: N/A Budget Authority: N/A SIGNATURE: `r � �-►+ Ronald E.Wi ler,Director Developmen ------------------------------------------------------------------------------------------------------------------------------------------- Commission/Council Notes: ------------------------------------------------------------------------------------------------------------------ REW:lag:05-18-Ol.cdc COMMISSION MEETING AGENDA MEETING DATE:05/18/1998 Agenda Item Number: , ECONOMIC DEVELOPMENT AGENCY STAFF REPORT ------------------------------------------------------------------------------------------------------------------ Harris Company HUD Loan In early 1995, the Agency made two loans to Harris Company in order to facilitate the acquisition of their existing building at Carousel Mall. In addition to purchase of the building, Harris agreed to invest a minimum of$1,000,000 in interior and exterior improvements to the building. One loan for$7,350,000 was provided through the U.S. Department of Housing and Urban Development (HUD) under Section 108 of the Housing and Community Development Act of 1974. The loan is for a 20 year period and secured by a note and deed of trust on the property. Terms of the loan agreement contain a number of operating covenants and conditions as follows: 1) Operating Covenant for year 1 to 3: (i) absolute agreement to maintain store within the City subject only to casualty losses, and (ii) must maintain substantial store operations, cannot change the character of the merchandising from current quality, cannot relocate corporate and administrative offices without City approval(loan due and payable upon a breach). 2) Operating Covenant for years 4 and 5: subject to (i) casualty losses resulting in inability to continue operations, and (ii) all other major department stores within Carousel Mall must continue in operation. 3) Operating Covenant for years 4 to 10: maintain operations in San Bernardino subject to (i) casualty losses, and (ii) Harris' Company attaining specified minimum sales levels commencing with$25M in sales for the 4"year and increasing to $33.5M in the 10" year. 4) Operating Covenant for years 10 to 20: (i) Harris' Company and not a subsidiary corporation or a limited or general partnership shall retain ownership of the store; (ii) comply with all terms and conditions in the HUD Loan Documents and all financial covenants; and (iii) additional financial covenants of net worth and assets and liabilities ratios. 5) A default is triggered by the failure to perform any covenant or obligation under Loan Agreement. The Agency remedies include the right to declare the entire principal balance and interest due and payable;together with other remedies under law. Currently a loan balance of$7,035,000 remains. ------------------------------------------------------------------------------------------------------------------ REW:1ag:05-18-01.cdc COMMISSION MEETING AGENDA MEETING DATE:05/18/1998 Agenda Item Number: Economic Development Agency Staff Report Harris Company HUD Loan May 11, 1998 Page Number-2- ------------------------------------------------------------------------------------------------------------------ The second loan(CDBG Float Loan) was approved by the Mayor and Common Council on January 23, 1995 in the amount of$3,130,000 for a one year period. On January 22, 1996, an amendment to the loan was approved extending the loan term up to five years. The loan is secured by a Letter of Credit in the amount of$3,130,000 issued by Bank of America. The interest rate on the Loan is at 8-1/2% per annum with monthly payments of$22,312.50 (all payments are current). Payments are retained in an interest bearing sinking fund account to be credited against the final principal due on the Float Loan. As of February 1, 2000, the amount on deposit in the sinking fund (estimated to be $1,338,750 plus accrued interest earnings) shall be applied to reduce the amount to be drawn upon the Letter of Credit to repay the Loan. All payments shall be applied to fulfill the City's obligation to fund CDBG projects. Finally, the Float Loan imposes covenants similar to those required under the Section 108 loan. These include: 1) Operating Covenant years 1 to 3: (i) absolute agreement to maintain its operations within the City subject to casualty losses; if a breach, then amounts on deposit in the sinking fund account shall NOT be used to reduce the amount of Loan; (ii) cease substantial store operations or change the character of the merchandising from the current quality, or relocate the corporate and administrative offices; without consent of City, the Loan shall be immediately due and payable and City shall draw upon Letter of Credit; if not in compliance with this covenant, then amounts on deposit in sinking fund account will NOT be used as credit against the Loan repayment. 2) Operating Covenant years 4 and 5: (i) maintain store operations provided that no casualty loss, and (ii) continued operations of all other major department stores within the Carousel Mall;upon a breach of this Operating Covenant, all amounts on deposit in the sinking fund account will NOT be used to reduce the amount of the Loan and such amounts will be retained by the City. Recently Harris Company advised the City of its intent to sell their building to their parent company El Corte Ingles. S.A. This sale is the final of four building acquisitions by El Corte Ingles, S.A. to recapitalize the Harris Company. As part of the transaction Harris will lease back the building and continue to operate their store. El Corte Ingles is a Spanish company, which does $5 billion per year in sales activity, with a net worth of approximately$2.5 billion. El Corte Ingles will assume responsibility for the Agency's loans as part of the arrangement. It should be noted that at the time the loans were originally structured, Agency staff attempted to secure guarantees from El Corte Ingles, S.A., but was unable to do so. The proposed arrangement accomplishes this goal. ------------------------------------------------------------------------------------------------------------------ REW:lag:05-18-0Ledc COMMISSION MEETING AGENDA MEETING DATE:05/18/1998 Agenda Item Number: 45 Economic Development Agency Staff Report Harris Company HUD Loan May 11, 1998 Page Number-3- ------------------------------------------------------------------------------------------------------------------ Staff has reviewed both the building sales and lease agreements. Loan security documents have been prepared by Agency Special Counsel in conjunction with the City Attorney's office in conjunction with Special Council. Agency's Financial Consultant, Mr. Scott Rodde, has reviewed the operating and financial statements of El Corte Ingles. A modified or substitute letter of credit will be delivered in a form acceptable to the City Attorney prior to execution and delivery of final documents. It should be noted that the principal assets of El Corte Ingles in the United States are the Harris occupied buildings. Although this could complicate Agency recovery in the event of default, staff and consultants agree that obtaining the financial strength and stature of a firm like El Corte Ingles to secure the loans will minimize the risk. El Corte Ingles has also agreed to appoint and maintain a local agent for service of process during the term of the loans to facilitate communitcation. In view of the above, it is recommended the Community Development Commission adopt the form motions. RONALD E WINKLER, Director Development Department ------------------------------------------------------------------------------------------------------------------ REW:1ag:05-18-01.cdc COMMISSION MEETING AGENDA MEETING DATE:05/18/1998 Agenda Item Number: RESOLUTION NO. 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 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 SBEO/0001/DOC/3323 5/13/98 (008.10-1) 100:ah — 1 — 5 Guarantee Assistance under Section 108 of the Housing and Community Development Act of 1974, 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 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 El 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 SBEO/0001/DOC/3323 5/13/98 (008.10-1) 100:ah — 2 WHEREAS, the collateral and security interests granted to the City by The Harris Company in the Property to secure repayment of the 1995 City Section 108 Loan Agreement has, in turn, been assigned by the City to the City CDBG Program Section 108 Loan Repayment Account and the Secretary of the United States Department of Housing and Urban Development under the 1995 HUD Section 108 Loan; and 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 CITY OF SAN BERNARDINO, DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS: SBEO/0001/DOC/3323 5/13/98 (008.10-1) 100:ah — 3 — Section 1. The Council hereby acknowledges receipt of the following documents and instruments from ECI and The Harris Company as on file with the City Clerk: (a) 1998 City of San Bernardino Assignment and Loan Assumption Agreement (1995 HUD Section 108 Loan Agreement) ; (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 E1 Corte Ingles, S .A. , effective May 2, 1998; (d) Grant of Authorization (El Corte Ingles, S .A. ) , dated April 15, 1998; and (e) Most currently available Audited Financial Statement of E1 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 SBEO/0001/DOC/3323 5/13/96 (008.10-1) 100:ah — 4 — and objectives under both the 1995 Float Loan Agreement and the 1995 City Section 108 Loan Agreement, and that Section 5 .3 of the Store Lease, dated as of May 2, 1998, by and between ECI and The Harris Company, contains provisions which assure the City that there shall be continuing compliance by The Harris Company as the tenant of ECI from and after the date on which ECI assumes the obligations of The Harris Company, with the original City CDBG Program goals and objectives under each of the 1995 financings 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: W confirmation of receipt of approving legal opinions of counsel for ECI and counsel for The Harris Company, each addressed to the City, which evidence that the representations and warranties of ECI and The Harris Company contained in the documents described in Section 1 of this Resolution are, to the best knowledge of legal counsel, true and correct, and that the delivery SBEO/0001/DOC/3323 5/13/98 (008.10-1) 100:ah - 5 - 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; (ii) 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; SBEO/0001/DOC/3323 5/13/98 (008.10-1) 100:ah — 6 — (iii) confirmation by the Director of the Development Department that concurrently upon the execution and delivery by the City of the fully executed form of the 1998 City of San Bernardino Assignment and Loan Assumption Agreement (1995 HUD Section 108 Loan Agreement) Chicago Title Insurance Company, shall at no cost to the City, shall issue an appropriate endorsement (e.g. , 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. SBEO/0001/DOC/3323 5/13/98 (008.10-1) 100:ah - 7 - I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting thereof, held on the day of 1998, by the following vote, to wit : Council : AYES NAYS ABSTAIN ABSENT ESTRADA LIEN ARIAS SCHNETZ DEVLIN ANDERSON MILLER City Clerk The foregoing resolution is hereby approved this day of 1998 . Mayor of the City of San Bernardino Approved as to form and legal content: By: City Attorney SBEO/0001/DOC/3323 5/13/96 (008.10-1) 100:ah — 8 — STATE OF CALIFORNIA ) COUNTY OF SAN BERNARDINO ) ss CITY OF SAN BERNARDINO ) 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. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the Mayor and Common Council of the City of San Bernardino this day of , 1998 . City Clerk City of San Bernardino SBEO/0001/DOC/3323 5/13/98 (008.10-1) 100:ah — 9 — EXHIBIT "A" 1998 CITY OF SAN BERNARDINO ASSIGNMENT AND LOAN ASSUMPTION AGREEMENT (1995 HUD SECTION 108 LOAN AGREEMENT: THE HARRIS COMPANY) RECORDING REQUESTED BY: DRAFT Timothy J. Sabo, Esq. i:tl:Y ? 8 1998 Sabo& Green Attorneys at Law 201 North "E" Street, Suite 206 San Bernardino, CA 92401 WHEN RECORDED MAIL TO: Timothy J. Sabo, Esq. Sabo& Green Attorneys at Law 201 North "E" Street, Suite 206 San Bernardino, CA 92401 THIS SPACE FOR RECORDER'S USE ONLY 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"), El 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: RECITALS 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 (i) a$3,150,000.00 Float Loan Agreement, dated as of January 30, 1995 (herein the"1995 Float Loan Agreement"). 1 B. The City has previously entered into an agreement entitled:"Contract for Loan Guarantee Assistance under Section 108 ofthe Housing and Community Development Act of 1974,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 HUD 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 ECI shall grant a long-term commercial lease interest in the Property to The Harris Company as the tenant of ECI. 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 HUD Section 108 Loan Agreement. F. The Harris Company and ECI 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 ECI as the successor and sole obligor under(1)that certain $7,350,000.00 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 ECI AND THE ASSUMPTION BY ECI 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. (b) The Harris Company and ECI 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 2 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 City Section 108 Loan Agreement. Section 2. (a) The text of the 1995 Float Loan Agreement is incorporated into this CDBG Loan Assumption Agreement by this reference. (b) The Harris Company and ECI 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 ECI 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 I (a) ECI 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) ECI 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 ECI instead of The Harris Company. (c) ECI 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 ECI of the obligations of The Harris Company shall constitute a release of liability of The Harris Company to the City, except the obligations provided in Paragraph 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 Hams 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 thereof). (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 terms of the lease affecting the property (the"Department Store Lease") shall be subject to the terms 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 ECI. 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. (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, 4 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 CDBG 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 CDBG 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. (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 5 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 conform 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 1 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 thereof is hereby amended by adding a third paragraph of text thereto which reads as follows: 6 "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 McAlearney Shimoff& Hatt, a Professional corporation,4 W. Redlands Boulevard,2"d 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 ofProcess 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 ASSUMPTION 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. 7 J "THE HARRIS COMPANY' The Harris Company, a California corporation Dated: May 18, 1998. By: Leopoldo Del Nogal President and Chief Executive Officer By: Thomas H. McPeters Secretary "ECI" El Corte Ingles, S.A., a Spanish corporation Dated: May 18, 1998. By: Leopoldo Del Nogal By: Thomas H. McPeters "CITY" City of San Bernardino, a municipal corporation Dated: May , 1998. By: Judith Valles Mayor ATTEST: City Clerk of the City of San Bernardino 8 5 STATE OF CALIFORNIA ) ss COUNTY OF SAN BERNARDINO ) On this 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. Notary Public in and for said County and State STATE OF CALIFORNIA ) ss COUNTY OF SAN BERNARDINO ) On this day of May, 1 998, 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. Notary Public in and for said County and State 9 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 10 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No.5907 State of California County of San Bernardino On June 03, 1998 before me, M. P. Hastings, Notary DATE NAME,TITLE OF OFFICER-E.G.,"JANE DOE,NOTARY PUBLIC' personally appeared Judith Valles NAME(S)OF SIGNER(S) personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and 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), M. P. HASTINGS or the entity upon behalf of which the Comm.11121908 ►n person(s) acted, executed the instrument. NOTARY PUBUC•CAUFORIRA +' San Bernardino County My Comm: EI«plru Fab:41,2001 '' WITNESS my hand and official seal. SIGNA RE 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 DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY-IN-FACT NUMBER OF PAGES ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: DATE OF DOCUMENT SIGNER IS REPRESENTING: NAME OF PERSON(S)OR ENTITY(IES) SIGNER(S)OTHER THAN NAMED ABOVE 01993 NATIONAL NOTARY ASSOCIATION-8236 Remmet Ave.,P.O.Box 7184-Canoga Park,CA 91309-7184 W. CALIFORNIA loop,-gob"ldarlak& '72 ALL-PURPOSE SO ACKNOWLEDGEMENT STATE OF CALIFORNIA COUNTY OF San Bernardino On June 3, 1998 before me, EILEEN C. GOMEZ DATE NAME,TITLE OF OFFICER- E.G.,"JANE DOE,NOTARY PUBLIC" personally appeared, RACHEL G. CLARK <�ersonally known to me or proved to me on the basis of satisfactory evidence)to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/ they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)on the instrument the person(s),or the entity upon behalf of which the person(s)acted, executed the instrument. WITNESS my hand and official seal. Eileen C. Gomez Comm.Al I!C4= 'C AAY SMOERNAADINOCOUNTY 0 CALIFORNIAN (SEAL) COMM.EXP.JULY 2,2001 NOTARY PUBLIC SIGNATURE OPTIONAL INFORMATION TITLE OR TYPE OF DOCUMENT San Bernardino Assignment and Loan Assumption k?s DATE OF DOCUMENT June 3, 1998 NUMBER OF PAGES 10 SIGNER(S)OTHER THAN NAMED ABOVE