HomeMy WebLinkAboutR28-Economic Development Agency
ECONOMIC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
FROM: Gary Van Osdel,
Executive Director
SUBJECT:
CINEPLEX - MDA Purchase and
Sale Agreement
DATE: January 25, 2001
ORIGINAL
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Svnopsis of Previous Commission/Council/Committee Action(s):
On November 4, 1996 the Council and the Commission adopted resolutions authorizing execution of a Disposition and
Development Agreement with MDA-San Bernardino Associates LLC.
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Recommended Motion(s):
(Community Development Commission)
MOTION:
A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING AND ACCEPTING
THE PURCHASE BY REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO FROM MDA-SAN BERNARDINO ASSOCIATES, LLC OF
THE CINEMASTAR THEATER PARCEL AND AUTHORIZING THE
EXECUTIVE DIRECTOR TO EXECUTE THE PURCHASE AND SALE
AGREEMENT AND JOINT ESCROW INSTRUCTIONS ON BEHALF OF
THE REDEVELOPMENT AGENCY
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Contact Person(s): Gary Van OsdeI/John Hoeger
Project Area(s) Central City North
Phone:
663-1044
Ward(s):
First
Supporting Data Attached: lEI Staff Report lEIResolution(s) lEI Agreement(s)/Contract(s) lEIMap(s) lEILetterlMemo
FUNDING REQUIREMENTS Amount: $ See text
Source:
See text
SIGNATURE:
Requested
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Commission/Council Nies:
P/i.RJ.)Ieua-J I 19/0 I .d1
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GVO:JBH:lag:01-29-01 Cineplex
COMMISSI
NO. P-(.E
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Agenda
ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
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CINEPLEX - MDA Purchase and Sale Al!:reement
The attached letter describes an offer by MDA-San Bernardino Associates to sell the downtown
cineplex property back to the Agency along with cash on hand and other assets such as the right
to unpaid rent now due from CinemaStar.
BACKGROUND
The downtown cineplex property is owned by the developer, MDA-San Bernardino Associates,
LLC (MDA). MDA obtained a lease with CinemaStar Luxury Theaters to equip and operate a
20-screen cineplex. Under the lease, CinemaS tar pays a fixed rent, a percentage rent and
common area expenses.
The Agency assembled the land, cleared the property, excavated the site and compacted the soil
to rough grade elevations. The Agency then transferred the Cineplex site and the Common Area
site to MDA. (The Agency still owns the retail parcels in front ofthe cineplex building.)
MDA contributed $250,425 at the beginning of the project and subsequently paid additional
amounts for cost overruns. MDA obtained a first trust deed construction loan of $3.6 million
from GMAC. MDA received a second trust deed loan of$7 million HUD10810an. The Agency
made a third trust deed loan of$I,324,575 to complete the construction financing for MDA.
In addition CinemaStar borrowed $2 million to purchase seats, fixtures and equipment for the
Cineplex as well as to pay for additional construction costs that were over and above the
construction allowance in the lease. Further, the Agency reconstructed the remaining portions of
Downtown Parking Lot No. I; paid for street improvements in E Street; paid for security
improvements in the Caltrans parking structure; and carried out modifications to the Mall's
three-level parking garage to provide a pedestrian entrance on Fourth Street.
The cineplex opened on December 10, 2000 with some construction items unfinished. Joe E.
Woods, the general contractor, subsequently completed all construction requirements to the
satisfaction of the City's Building Services Division and the City issued its Certificate of
Occupancy on July 10,2001.
Following issuance of the Certificate of Occupancy in June 2000, the GMAC construction loan
obtained by MDA was paid off by a refinancing loan from Gold Mountain Financial Institution,
Inc. This new senior loan from carries an interest rate of 12% per annum and is fully amortized
over 15 years. The monthly payments are $43,206.
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GVO:JBH:lag:OI-29-01 Cineplex
COMMISSION MEETING AGENDA
Meeting Date: 01/29/2001
Agenda Item Number:
Economic Development Agency Staff Report
Cineplex - MDA Purchase and Sale Agmt
January 25, 2001
Page Number -2-
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The HUDI08 loan bears interest at the rate of 7.5% and is paid semiannually in February and
August. This year's payments are equivalent to monthly payments of about $60,300 per month.
These payments decline slightly as the years progress and are equivalent to about $55,000 per
month in 2017. The final payment occurs on August 1, 2018. MDA makes payments in
December and June to provide the Agency with advance funds to make its February and August
payments to HUD.
CinemaStar's lease payment to MDA is $111, 200 per month plus common area expenses which
include property tax payments and a parking charge of $5,000 per month.
CURRENT ISSUE
CinemaStar's last rental payment to MDA was made in September 2000. MDA gave CinemaStar
a 10 Day Notice to Payor Quit on September 20. MDA had already made its June payment to
the Agency and had sufficient cash on hand to continue to make payments to Gold Mountain.
However, MDA did not have funds to make its December payment to the Agency and the
Agency issued a Notice of Default to MDA on December 12.
CinemaStar filed a petition for reorganization under Chapter 11 of the United States Bankruptcy
Code on January 4 and has been negotiating with MDA (and Agency staff) to reduce its lease
rate. MDA is the Landlord and, until recently, Agency staff could not deal directly with
CinemaStar. Nevertheless, staff attended meetings and stayed current with events to be in a
position to protect the City/Agency interests.
If MDA agrees to significant rent concessions it will not be able to make its debt service
payments. If CinemaS tar cannot obtain such concessions it claims it cannot continue to operate
the cineplex and will be forced to reject the San Bernardino lease in its bankruptcy
reorganization and close the theater. In this situation, MDA could not make debt service
payments. Given these circumstances, MDA has offered to sell the Cineplex property to the
Agency for the amount of the outstanding Deeds of Trust against the property, plus $10,000 to
cover MDA's expenses in the purchase and sale transaction.
The attached letter describes MDA's offer to sell its assets (including cash of about $75,000) for
$10,000. The $10,000 will cover MDA's legal, accounting and other costs to wind up its affairs.
The Agency will have additional costs of about $10,000 for escrow fees and title insurance to
complete the transaction.
Removing MDA from the project makes it possible for the City/Agency to take steps to preserve
the continued operation of the cineplex and cover the HUDI08 obligations. It also paves the way
for refinancing the Gold Mountain loan with lower cost financing. Continued operation,
however, remains contingent upon CinemaStar successful by emerging from its bankruptcy
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GVO:JBH:lag:O 1-29-0 1 Cineplex
COMMISSION MEETING AGENDA
Meeting Date: 01129/2001
Agenda Item Number:
Economic Development Agency Staff Report
Cineplex - MDA Purchase and Sale Agmt
January 25, 2001
Page Number -3-
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reorganization proceedings. The success of CinemStar's reorganization partially depends upon
lease renegotiations with theater property owners at CinemaStar's other sites.
AL TERNA TIVES
The Agency's principal alternatives are to temporize, doing nothing either for the time being or
permanently. If the Agency does not step in now, MDA cannot negotiate lease concessions with
CinemaStar. CinemaStar must reject MDA's lease in its reorganization because the theater does
not produce sufficient income to make the lease payments, MDA will then default on the Gold
Mountain loan as well as the HUDI08 loan. Gold Mountain will foreclose on MDA, MDA
would enter bankruptcy and the Agency would be presented with a choice.
If the Agency does nothing, it may lose its security interest in the cineplex and common area
parcels but remain responsible for paying off the $7,000,000 HUDI08 loan at approximately
$60,000 per month.
Tbe Agency may be able to convince the bankruptcy court to transfer the property to the Agency,
letting it cure the Gold Mountain loan. If that happens, the Agency becomes the owner an empty
cineplex building.
Additionally, ifMDA declares bankruptcy it could convince the court to "write down" its debt to
a level that would let it lease the property to some alternative theater management company. The
lease rate would have to be quite low to complete with other theater opportunities now available
due to industry-wide closures. It could only pay a portion of the combined secured debt. The
Agency and Gold Mountain would then be in contention with each other. The Agency would
want Gold Mountain's loan to be reduced proportionately. Gold Mountain would want its loan
protected and all reduction to be against the second.
An action similar to the one proposed would be for the Agency to foreclose against MDA now.
However, the costs would higher for the Agency than those for the sale proposal and the Agency
would receive less because MDA would keep the cash on hand. Finally, there would be no title
insurance on deed, no representations by MDA, and no certainty that CinemaStar could wait out
the foreclosure proceeding. MDA would likely enter bankruptcy allowing the possibility of
restructuring the debt as discussed above.
Agency Special Counsel analyzed an alternative of buying the Limited Liability Company itself,
The review indicated that an asset purchase like the one proposed would have less potential for
unknown liabilities and be preferable to buying the entity outright.
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GVO:JBH:lag:OI-29-01 Cineplex
COMMISSION MEETING AGENDA
Meeting Date: 01/29/2001
Agenda Item Nnmber:
Economic Development Agency Staff Report
Cineplex - MDA Purchase and Sale Agmt
January 25, 2001
Page Number -4-
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FISCAL IMPACT
In addition to the $10,000 sale price, the Agency will pay escrow and title costs of $10,000. A
$43,206 payment will be due Gold Mountain in February. A $255,696 payment to HUD is also
due. These payments and costs total $318,902.
If CinemaStar does not immediately reject the San Bernardino lease in its reorganization, it must
make a rent payment of $111,200 on February 1. The MDA transaction is expected to produce
more than $70,000 in cash. These total approximately $181,200. The difference of $137,702
would have be paid from tax increment proceeds.
The Agency would then be responsible for monthly payments of $43,206 to Gold Mountain and
the equivalent of monthly payments of $60,300 to HUD. The agency would also take over
landscape and other common area maintenance. Landscaping maintenance is about $2,000 per
month plus other costs such as electricity for the plaza area lights, sweeping, etc.
Further, the Agency would have the opportunity to negotiate a rent reduction with CinemaStar,
which is the best prospect for keeping the theater operating.
RECOMMENDATION
For the above reasons, a purchase from MDA is the best option for protecting the investments
that have been made by the City and Agency in the downtown cineplex. The purchase agreement
will also terminate the Disposition and Development Agreement under which MDA would
otherwise have a right to the remaining retail parcels. Staff therefore recommends adopting the
resolution authorizing execution of a Purchase and Sale Agreement with MDA-San Bernardino
Associate, LC for t e downtown cineplex property.
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GVO:JBH:lag:OI-29-01 Cineplex
COMMISSION MEETING AGENDA
Meeting Date: 01129/2001
Agenda Item Number:
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MDA-SAN BERNARDINO ASSOCIATES, LLC
300 Continental Blvd" Suite 360
El Segundo, CA 90245
January 4, 2001
G
~
Gary Van Osdel
Executive Director
City of San Bernardino
Economic Development Agency
201 North E Street, Suite 301
San Bernardino, CA 92401-1507
Re: Cinemastar Luxury Theaters, rnc, - San Bernardino,
California
Dear Mr. Van Osdel:
G
..
The undersigned, MDA-San Bernardino Associates, LLC, a
Delaware limited liability company (~MDAn), is the owner of fee
title to real property wpich is leased to Cinemastar Luxury
Theaters, Inc. (~Cinemastarnl pursuant to a Multiplex Theater
Lease dated December 20, 1996, As you may know, Cinemastar
encountered severe financial difficulties several months ago and
has not paid rent under the lease since the month of September
2000. Cinemastar has proposed a ~workout" plan which has been
submitted to the Agency and to MDA but which has not been
accepted.
The subject property is the sole asset of MDA, and due to
the absence of rental ln~ome, MDA is unable to make payments on
the Agency loans which have been made to MDA under the
Disposition and Development Agreement between MDA and the Agency
which was executed by the Agency on November 4, 1996. MDA,
however, has kept curren~ the payments on the Gold Mountain
Financial Institution, Inc, first trust "deed loan through
December 2000, and intends to make the January 2001 payment as
well. MDA also paid the first installment of 2000-2001 real
property taxes on the subject property.
In view of the present situation, MDA hereby makes the
following proposal to the Agency:
1. MDA will sell the subject property to the Agency
and will assign to the Agency the lessor's interest under the
Multiplex Thp.ata~ Lease pated December 20, 1996 with Cinemastar,
including all rights to past due rent and other charges. MDA
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will also assign to the Agency all of its rights under the UCC-1
Financing Statement dated December 14, 1998 executed by
Cinemastar as debtor in favor of MDA as secured party, recorded
December 29, 1998. The consideration for the sale and purchase
of the subject property will be $10,000 to be paid by the Agency
to MJA upon closing.
2, The real property will be conveyed subject to the
first lien deed of trust in favor of Gold Mountain financial
Institution, Inc. and to the deeds of trust securing the Agency
Second Loan in the amount of $7,000,000 and the Agency Third Loan
in amount of $1,324,575. There will be no other monetary lien
against the subject property, However, second installment 2000-
2001 taxes will not have been paid at the closing.
3. The Disposition and Development Agreement will be
terminated and canceled, and MDA will have no rights to acquire
the "Retail Parcelu,
~
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4. MOA's rights under all related agreements will
also be assigned to the Agency, including under the Parking
Agreement dated December 10, 1998, the Public Parking Structure
Use Agreement dated November 9, 1998, and other project related
documents and agreements,
5, After payment of outstanding bills, MDA will also
deliver to the Agency, at the closing, all monies in its account
which MOA estimates will be in the neighborhood of approximately
S80,000, depending upon when the closing occurs,
6. There will be no prorations of income or expense
at the closing, All receivables from Cinemastar will be assigned
to the Agency at the closing.
7. The closing will occur on January 31, 2001 or on
'such other date as the parties may agree to.
~
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8, Title insurance costs, escrow fees, if any,
recording charges, and documentary transfer taxes in respect of
the transaction will be paid by the Agency. All escrow exp~ses
will be either paid for by the Agency or paid out of the cash
fund which will be delivered to the Agency at the closing.
Utilities, landscaping and any other common area expenses will
also be paid out of this cash fund,
9, Except for the obligations of the parties under
the agreement of purchase and sale of the property, there will be
5684300012.117;5113.1
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mutual releases exc~anged at the closi~g, inclUding a waiver of
unknown claims pursuant to Civil Code 51542.
10. At the option of the Agency, the closing can occur
through an escrow which will be opened to consummate the same or
can be handled directly through the title company who will issue
a policy of title insurance to the Agency at the closing.
This proposal is made for consideration by the Agency at its
meeting tc be held on January 8, 2001. In the meanwhile, MDA
hereby gives the Agency the authority and right to directly
concact Cinemastar and Gold Mountain Financial Institution, Inc.,
the beneficiary of the first deed of trust on the subject
property. Upon acceptance by the Agency, MDA will draft a formal
purchase and sale agreement and forward it to the Agency for
review and comments.
Should you have any
contact the undersigned.
acceptance by the Agency
questions concerning this letter, please
This offer will remain open for
through and including January 8, 2001.
Very truly yours,
MDA-SAN BERNARDINO ASSOCIATES, LLC,
a Delaware limited liability company
By: SK Investors No.1, L.L.C" a
Delaware limited liability company
By: SK Metro Development L.~.,
a California limited partnership
its Sole Member
By: SK Metro Corp.,
a California corporation
its General Partner
BY:~ D. y..,~
, J, on Kanun, Vice President
CC: Tim Saba/Delmar Williams
Stephen Claman
~OOO12.1179~93.1
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(G(Q)(P)W
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RESOLUTION NO.
A RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO
APPROVING AND ACCEPTING THE PURCHASE BY
REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO FROM MDA-SAN BERNARDINO
ASSOCIATES, L,L.C, OF THE CINEMASTAR THEATER
PARCEL AND AUTHORIZING THE EXECUTIVE
DIRECTOR TO EXECUTE THE PURCHASE AND SALE
AGREEMENT AND JOINT ESCROW INSTRUCTIONS ON
BEHALF OF THE REDEVELOPMENT AGENCY
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WHEREAS, the Community Development Commission of the City of San
Bernardino (the "Commission") is the governing body ofthe Redevelopment Agency ofthe City of
San Bernardino (the "Agency"), a public body corporate and politic, organized and existing pursuant
to the Community Redevelopment Law (California Health and Safety Code Section 33000, et seq,);
and
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WHEREAS, pursuant to that certain Disposition and Development Agreement
("DDA") between the Agency and MDA-San Bernardino Associates, L.L.C., a Delaware limited
liability company ("MDA"), MDA acquired the real property described on Exhibit "A" attached
hereto and incorporated herein by this reference (the "Cinemastar Theater Parcel"); and
WHEREAS, pursuant to the DDA, MDA has developed and constructed on the
Cinemastar Theater Parcel an approximately 80,000 square foot multi-screen cinema complex and
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related common areas; and
WHEREAS, the acquisition and development of the Cinemastar Theater Parcel and
construction of the above-referenced cinema complex by MDA (the "Project") was financed by a
construction loan from GMAC Commercial Mortgage Corporation, which has since been refinanced
by a loan from Gold Mountain Financial Institution, Inc. ("Senior Lender"), and with financial
assistance from the Agency consisting of (i) a loan pursuant to that certain 1998 Community
S82001:2412.1
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I Development Block Grant Program Section 108 Project Development Loan Agreement dated as of
2 December 10, 1998 (the "Second Loan") and (ii) a Project development cost contribution (the
3 "Third Loan"); and
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5 WHEREAS, at present, the Cinemastar Theater Parcel is encumbered as follows:
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7 (a) A deed of trust (the "First Trust Deed") in favor of the Senior Lender in the
8 original principal amount of Three Million Six Hundred Thousand Dollars ($3,600,000), the
9 outstanding principal balance of which is Three Million Six Hundred Thousand Dollars
10 ($3,600,000);
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12 (b) A deed of trust (the "Second Trust Deed") in favor of the Agency securing
13 the Second Loan, the outstanding principal balance of which is approximately Seven Million Dollars
14 ($7,000,000); and
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16 (c) A deed of trust (the "Third Trust Deed") in favor of the Agency securing the
17 Third Loan, the outstanding principal balance of which is approximately One Million Three Hundred
18 Twenty-Five Thousand Five Hundred Seventy-Five Dollars ($1,325,575); and
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20 WHEREAS, the Cinemastar Theater Parcel is subject to that certain Multi-Plex
21 Theater Lease dated December 20, 1996 between MDA, as Landlord, and CinemaStar Luxury
22 Theaters, Inc., a California corporation ("Cinemastar"), as Tenant, and amended by that certain First
23 Amendment to Multi-Plex Theater Lease dated December 10, 1998 (the "Lease"); and
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25 WHEREAS, Cinemastar is in default under the Lease, has not paid rent to MDA since
26 September, 2000 and has filed a voluntary petition for relief under Chapter II of the U.S.
27 Bankruptcy Code; and
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S82001:2412.1
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1 WHEREAS, in the absence of rental income derived from the Lease, MDA is unable
2 to make further payments on the indebtedness secured by the First Trust Deed, the Second Trust
3 Deed and the Third Trust Deed, although the indebtedness secured by the First Trust Deed is current
4 through the end of January, 2001; and
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9 WHEREAS, in order to protect the investment the Agency has heretofore made in
10 the Project and to preserve the security afforded by the Second Trust Deed and Third Trust Deed,
11 the Agency desires to purchase the Cinemastar Theater Parcel from MDA; and
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13 WHEREAS, a Purchase and Sale Agreement and Joint Escrow Instructions by and
14 between the Agency and MDA has been presented to this Commission for approval.
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16 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION
17 ACTING ON BEHALF OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
18 BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS:
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23 Section 2, The Commission hereby approves the Purchase and Sale Agreement
24 and Joint Escrow Instructions attached hereto as Exhibit "B".
WHEREAS, MDA wishes to sell the Cinemastar Theater Parcel to the Agency and
assign the Lease to the Agency; and
Section 1. The Commission hereby approves and accepts the purchase by the
Agency of the Cinemastar Theater Parcel.
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26 Section 3. The Executive Director ofthe Agency is hereby authorized to execute
27 the Purchase and Sale Agreement and Joint Escrow Instructions on behalf of the Agency in
28 substantially the form attached hereto, together with such changes therein as may be approved by
SB200L2412.\
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I the Executive Director and Agency Special Counsel. The Executive Director or such other
2 designated representative of the Agency is further authorized to do any and all things and take any
3 and all actions as may be deemed necessary or advisable to effectuate the purposes of the Purchase
4 and Sale Agreement and Joint Escrow Instructions.
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5B200\:24\2,\ 4
1 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY
OF SAN BERNARDINO APPROVING AND ACCEPTING THE PURCHASE BY
2 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO FROM MDA-SAN
BERNARDINO ASSOCIATES, L.L.C, OFTHE CINEMAST AR THEATER PARCEL AND
3 AUTHORIZING THE EXECUTIVE DIRECTOR TO EXECUTE THE PURCHASE AND
SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS ON BEHALF OF THE
4 REDEVELOPMENT AGENCY
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Section 4.
This Resolution shall become effective immediately upon its adoption.
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8 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community
9 Development Commission ofthe City of San Bernardino at a
meeting thereof,
10 held on the
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12 Commission
ESTRADA
13 LIEN
MCGINNIS
14 SCHNETZ
SUAREZ
15 ANDERSON
McCAMMACK
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day of
,2001, by the following vote, to wit:
AYES
NAYS
ABSTAIN ABSENT
Secretary
The foregoing Resolution is hereby approved this _ day of
,2001.
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Judith Valles, Chairperson
Community Development Commission
of the City of San Bernardino
Approved as to form
23 and legal content:
24 By:
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Agency Counsel
S82001:2412.1
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1 STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss
2 CITY OF SAN BERNARDINO )
3 I, Secretary of the Community Development
Commission ofthe City of San Bernardino, DO HEREBY 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.
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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
,2001.
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Secretary of the
Community Development Commission
of the City of San Bernardino
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582001:2412.1
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1 EXHIBIT "A"
2 LEGAL DESCRIPTION OF THE CINEMASTAR THEATER PARCEL
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SB200!:2412.!
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1 EXHIBIT "B"
2 PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
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5B2001:2412,1
8
PURCHASE AND SALE AGREEMENT
AND
JOINT ESCROW INSTRUCTIONS
BY AND BETWEEN
MDA-SAN BERNARD~NO ASSOCIATES, LLC,
a Delaware limited liability company (uMDA")
AND
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO,
a public body corporate and politic
of the State of California (UAgency")
SB2001:2046.1
i
Mo. Lj
/I~r/o/
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
1 Parties.
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
("Agreement"), is made this ___ day of January, 2001 by and between
MDA-SAN BERNARDINO ASSOCIATES, LLC, a Delaware limited liability
company ("MDA"), and the REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO, a public body corporate and politic of the State of
California ("Agency")
2 Recitals,
2.1 Pursuant to that certain Disposition and Development
Agreement between MDA and Agency (the "DDA") which was recorded in
the Official Records of San Bernardino County, California
("Official Records") on December 29, 1998 as Document No.
19980556709, MDA acquired the real property described on Exhibit
"A" attached hereto and incorporated herein by reference (the
"Property"). Pursuant to the DDA, MDA has developed and
constructed on the Property an approximately 80,000 square foot
multi-screen cinema complex and related common areas leased to
Cinemastar Luxury Theaters, Inc., a California corporation. MDA's
acquisition and development of the Property and construction of the
above-referenced cinema complex (the "Project") was financed by a
construction loan from GMAC which has been since refinanced by a
loan from Gold Mountain Financial Institution, Inc. ("Gold
Mountain"), and with financial assistance from the Agency
consisting of loans represented by the "Agency Note" and the
"Second Agency Note". The Agency Note is secured by a deed of
trust encumbering the Property junior to a first deed of trust
securing the Gold Mountain loan, and the Second Agency Loan is
secured by a third deed of trust junior only to the deed of trust
securing the Gold Mountain loan and the deed of trust securing the
Agency Note. At the present, the Property is subject to only the
following monetary encumbrances:
(a) A deed of trust (the "First Trust Deed") in favor of
Gold Mountain in the original principal amount of Three
Million Six Hundred Thousand Dollars ($3,600,000), the
outstanding principal balance of which is Three Million Six
Hundred Thousand Dollars ($3,600,000);
SB2001:2046.1
1
(b) A deed of trust (the "Second Trust Deed") in favor
of the Agency securing the Agency Note, the outstanding
principal balance of which is approximately Seven Million
Dollars ($7,000,000); and
(c) A deed of trust (the "Third Trust Deed") securing
the Second Agency Note, the outstanding principal balance of
which is approximately One Million Three Hundred Twenty-Five
Thousand Five Hundred Seventy-Five Dollars ($1,325,575).
2.2 MDA and Agency entered into that certain Parking
Agreement dated December 10, 1998 (the "Parking Agreement")
recorded in the Official Records on December 29, 1998 as Document
No. 19980556712.
2.3 The Property is subj ect to that certain Multi-Plex
Theater Lease dated December 20, 1996 between MDA, as Landlord, and
Cinemastar Luxury Theaters, Inc., a California corporation
("Tenant"), as Tenant, as to which a Short Form of Lease dated
December 10, 1998 was recorded in the Official Records on December
29, 1998 as Document No. 19980556713. Such Lease was amended~y
that certain First Amendment to Multi-Plex Theater Lease dated
December 10, 1998. Such Lease, as amended, is herein called the
"Leasel/.
2.4 Tenant is in default under the Lease, has not paid rent
to MDA since September, 2000 and has filed a voluntary petition for
reI ief under Chapter 11 of the U. S . Bankruptcy Code. In the
absence of rental income derived from the Lease, MDA is unable to
make further payments on the indebtedness secured by the First
Trust Deed, the Second Trust Deed and the Third Trust Deed,
although the indebtedness secured by the First Trust Deed is
current through the end of January, 2001.
2.5 MDA wishes to sell the Property to Agency and, in
connection therewith, to terminate the DDA, and to assign the
Lease, the Guaranty of Lease, and the Parking Agreement to Agency,
and Agency wishes to purchase and acquire the Property as herein
set forth.
$B2Q01: 2046.1
2
3 Purchase and Sale.
3.1 MDA agrees to sell, convey and deliver the Property to
Agency and Agency agrees to purchase and accept the Property from
MDA, at the Purchase Price, and on the terms and conditions
contained hereinafter.
3.2 As used herein, the term "Property" means collectively
the Property, and all improvements thereon, and, to the extent
owned by MDA and transferable or assignable, all of the following:
(a) All appurtenant easements, rights of way, and
similar items running in favor of or benefitting the Property;
(b) All of MDA' s interest in the driveways, landscaping,
curbs and gutters, utility installations and all other
improvements and fixtures located on the Property;
(c) All right, title and interest of MDA in all personal
property located on and used in connection with the operation
of the improvements, including but not limited to, ('i)
fixtures, heating, ventilation and air conditioning fixtures
and equipment, lighting, and electrical and plumbing fixtures
and equipment, and (ii) all intangible personal property used
in connection with the Property (collectively, the "Personal
Property"); and
(d) All of MDA's right, title and interest as Landlord
under the Lease, including, but not limited to, all rights to
receive rents which have been earned and are owing and rents
which may hereinafter accrue and become owing, security
deposits, if any, any and all amounts which may be owing by
Tenant to Landlord pursuant to the Lease and all rights of MDA
as an additional insured under insurance policies maintained
by the Tenant.
(e) The Guaranty of Lease attached to the Lease as
Exhibit "D."
4 Purchase Price.
The purchase price ("Purchase Price") for the Property shall
be an amount equal to the sum of the indebtedness secured by the
First Trust Deed, the Second Trust Deed and the Third Trust Deed,
SB2001:2046.1
3
plus Ten Thousand Dollars ($10,000)
paid by Agency as follows:
The Purchase Price shall be
4.1
the First
Deed.
At the Closing, Agency shall take the Property subject to
Trust Deed, the Second Trust Deed and the Third Trust
4.2 On or before the "Closing Date" (as defined in Section
5.2 below) Agency shall have on deposit in Escrow, in funds
available for disbursement to MDA on the date specified for Close
of Escrow (hereinafter defined), the sum of Ten Thousand Dollars
($10,000), plus additional amounts required to pay Agency's
expenses as provided herein, if any.
5 Escrow.
5.1 Within five (5) business days after the execution of
three (3) copies of this Agreement by Agency and MDA, the parties
shall open an escrow ("Escrow") at First American Title Insurance
Company in San Bernardino, California ("Escrow Holder"), in order
to consummate the purchase and sale of the Property. A ful'ly
executed copy (or counterpart executed copies) of this Agreement
shall be deposited with Escro~Holder and shall be considered as
the instructions of the parties as to the terms and conditions of
the Escrow. Escrow Holder's General provisions of escrow, as set
forth on Exhibit "B" attached hereto, are hereby incorporated
herein. In the event of a conflict between this Agreement and the
General Provisions, the terms of this Agreement shall prevail.
5.2 As used herein (i) the term "Opening of Escrow" shall
mean the date that the Escrow Holder acknowledges its agreement to
act as Escrow Holder in accordance with the provisions of this
Agreement; (ii) the terms "Close of Escrow" and "Closing" shall
mean the recording of the Grant Deed in the Official Records of San
Bernardino County, California; (iii) the term "Closing Date" shall
mean that date on which the Close of Escrow occurs; and (iv) the
term "Date of Agreement" shall mean the date upon which the Agency
and MDA have executed and delivered this Agreement. Escrow Holder
shall confirm by notice to Agency and MDA, in writing, the date of
Opening of Escrow. The Close of Escrow shall occur on February 8,
2001, or on such other date mutually agreeable to the parties.
SB2001:2046.1
4
6 Closinq Costs,
The cost of an ALTA standard owner's title insurance policy,
or such other policy of title insurance desired by Agency, with
liability in the amount of the Purchase Price shall be paid by
Agency. The escrow fee and costs shall be borne by Agency. Agency
shall pay all documentary transfer taxes payable in connection with
the recordation of the Grant Deed. Agency shall pay Escrow
Holder's customary charges to Agency for document preparation,
recording and miscellaneous charges.
7 Conditions Precedent: Due Diliqence Investiqation: Title,
7.1 Notwithstanding any provision of this Agreement to the
contrary, Agency's obligation to purchase the Property is subject
to Agency's approval or waiver of the following contingencies,
which approval or waiver shall be in writing and given or withheld
in Agency's sole discretion. Agency may withhold its approval for
any reason whatsoever without regard to considerations of
reasonableness. In the event Agency disapproves, in Agency's sole
discretion, or is deemed to have disapproved of any of the
following contingencies within the applicable date(s) set forth
below, this Agreement shall automatically terminate withQut notice
whereupon neither party shall have any further rights or
obligations hereunder (except for those provisions which, pursuant
to the terms of this Agreement, survive such termination)
(a) Unless otherwise set forth specifically herein,
Agency shall have until 5: 00 p. m. on the seventh (7th)
business day after the Opening of Escrow (the "Due Diligence
period") within which to make such investigations, tests and
studies of the Property as Agency deems appropriate. Agency's
review of the Property, including physical inspections of the
Property shall be conducted at Agency's sole cost and expense.
(b) Agency shall have until the expiration of the Due
Diligence Period to deliver to MDA a notice disapproving the
Due Diligence Documents (as defined in Section 7.3) or the
Property. Failure to so notify MDA in writing by the
expiration of the Due Diligence Period shall be conclusively
deemed Agency's disapproval of the Due Diligence Documents and
the Property.
7.2
Agency's
The following are additional conditions precedent to
obligations under this Agreement, and are intended solely
SB2001:2046.1
5
for the benefit of Agency and may be waived only by Agency in
writing. In the event any conditions precedent set forth in this
Section 7.2 are not satisfied as of the Close of Escrow, Agency
may, in its sole and absolute discretion, by written notice
delivered to MDA, terminate this Agreement, whereupon all rights
and obligations of Agency and MDA hereunder (except provisions of
this Agreement which recite that they survive termination) shall
automatically terminate and be of no further force or effect.
(a) Agency has obtained all necessary consents and
authorizations to perform its obligations hereunder.
(b) The issuance by First American
Company (the "Title Company") to Agency of
(hereafter defined) .
Title Insurance
the Title Policy
(c)
contained
been true
as of the
All of MDA's written representations and warranties
in or made pursuant to this Agreement shall have
and correct when made and shall be true and correct
Closing Date.
(d) There shall be no litigation or administrative
agency or other government~l proceeding pending or threatened
against the Property, which, after Closing, would materially
adversely affect the value of the Property or the ability of
Agency to operate the Property, other than Tenant's bankruptcy
proceedings under Chapter 11 of the United States Bankruptcy
Code (United States Bankruptcy Court, Southern District of
California, Case No. 01-00110-JMll).
(e) After the Due Diligence Period and through and
including the Close of Escrow, there shall be no material
adverse physical change in the Property.
(f) MDA's
certificate from
or breach of any
delivery to the Agency
Tenant certifying that MDA
of the terms of the Lease,
of an estoppel
is not in default
as amended.
(g) MDA' s assignment to the Agency of all guaranties and
warranties of contractors and subcontractors related to the
Property.
(h) MDA's
in that certain
the Lease.
assignment to the Agency of all its interests
Guaranty of Lease attached as Exhibit "D" to
SB2001:2046.1
6
7.3 Due Diliqence Documents. MDA will deliver to Agency the
following documents ("Due Diligence Documents") promptly after
Opening of Escrow:
(a) A Copy of the Lease and any other written agreements
regarding the Property that are to remain in effect after the
Closing Date) .
(b) Copies of the most recent property tax bills that
relate to the Property, to the extent they are in MDA' s
possession or control.
(c)
with the
A Natural Hazard Disclosure Statement in accordance
requirements of Civil Code ~ 1102.6(c).
(d) All documents relating to MDA's ownership and
operation of the Property, including without limitation, surveys,
title reports, environmental reports, construction records, all
guarantees of contractors and subcontractors, employee records,
etc.
7.4 Accuracv of Due Dilioence Documents. Except as otherwise
provided in this Agreement or in documents or instruments .delivered
in connection with this transaction, including without limitation
in the closing documents executed and delivered by MDA pursuant to
Section 12.1 below, MDA makes no representation or warranty as to
the accuracy or completeness of the Due Diligence Documents or any
information and materials contained therein to the extent that any
such information is the work product of an independent third-party
contractor. However, MDA warrants that it provided to Agency all
information and documents in MDA's possession or control regarding
ownership and operation of the Property.
7.5 Propertv Inspection. Agency, Agency's representatives,
and/or authorized agents may enter the Property during the Due
Diligence Period to make tests or other studies of the Property;
provided, however, that (i) Agency shall not unreasonably interfere
wi th the use of the Property by Tenant, (ii) Agency shall not
conduct any invasive testing of the Property, (iii) Agency shall
pay for all such tests and studies, (iv) Agency shall keep the
Property free and clear of any liens arising out of Agency's entry
onto the Property or the tests and studies and shall name MDA as an
additional insured on Agency's comprehensive general liability
insurance, and a copy of Agency's insurance certificate shall be
furnished to MDA prior to entry on the Property, and (v) Agency
582001:2046.1
7
shall promptly repair all damage to the Property arising out of or
caused by such entry or the tests and studies. Phase 1
environmental investigation, structural engineering investigation
and property surveys are not "invasive testing" for the purposes of
this Agreement.
7.6 Title Condition and Deed.
(a) Upon execution of this Agreement, MDA shall deliver
to Agency a preliminary title report covering the Property,
with copies of all documents referenced as exceptions therein
(collectively the "Reports") from the Title Company. Agency
shall have until the expiration of the Due Diligence Period to
deliver to MDA in writing Agency's approval of the Title
Report or, alternatively, Agency may deliver to MDA in writing
any objections to the Property or the condition of title as
set forth therein; provided, however, Agency shall not object
to (i) a lien to secure payment of real estate taxes, not yet
due and payable as of the Closing Date; (ii) the First, Second
or Third Trust Deeds, including an assignment of the Lease to
the lenders; (iii) any matter recorded pursuant to the D~;
and (iv) matters affecting the condition of title created by,
or with the consent of, A~ency.
(b) Failure of Agency to approve, by written notice to
MDA, to any exception shown in the Reports within the Due
Diligence Period, shall be conclusively deemed Agency's
disapproval of such exceptions. In the event of Agency's
disapproval, this Agreement shall automatically terminate,
whereupon neither party shall have any further rights or
obligations hereunder Escrow shall be canceled.
(c) At Close of Escrow MDA shall convey the Property to
Agency by Grant Deed in the form of Exhibit "C" attached
hereto and incorporated herein modified as mutually agreed to
by the Parties, subject to those title exceptions, matters and
restrictions of record approved in writing by Agency. At the
Closing, title shall be evidenced by the unconditional
commitment of the Title Company to issue its ALTA standard
owner's form policy of title insurance in the amount of the
Purchase Price or such other policy of title insurance desired
by Agency, showing title to the Property vested in Agency
subject only to the exceptions and matters approved in writing
by Agency (the "Title Policy") .
8B2001:2046.1
8
7.7 Consent of Gold Mountain. Notwithstanding any provision
of this Agreement which may be to the contrary, Agency's obligation
to purchase the Property is subj ect to MDA having obtained and
delivered to Agency prior to the expiration of the Due Diligence
Period an unqualified Consent to Sale from Gold Mountain in a form
approved by Agency. In the event such Consent to Sale has not been
delivered to Agency prior to the expiration of the Due Diligence
Period, and Agency has not waived such requirement, this Agreement
shall automatically terminate without notice, whereupon neither
party shall have any further rights or obligations hereunder Escrow
shall be canceled.
8 Representations and Warranties,
8.1 Agency hereby makes the following representations and
warranties to MDA, which representations and warranties are, and as
of the Close of Escrow shall be, true in all material respects:
(a) Leoall v Bindino. This Agreement and the other
documents to be executed by Agency hereunder upon execution
and delivery thereof by Agency, will have been duly entered
into by Agency and will constitute legal, valid and binding
obligations of Agency, "except to the extent that such
enforcement may be limited by applicable bankruptcy,
insol vency, moratorium and other principles relating to or
limiting the rights of contracting parties generally.
(b) Consents. All requisite action has been taken by
Agency and all requisite consents have been obtained in
connection with entering into this Agreement by Agency, and
shall have been taken by Agency prior to the expiration of the
Due Diligence Period for the consummation of the transaction
contemplated by this Agreement, and no consent of any other
party is required.
(c) Authoritv. Agency has the legal power, right and
authority to enter into this Agreement and the instruments and
documents referenced herein, and to consummate the transaction
contemplated hereby. The individuals executing this Agreement
and the instruments to be delivered by Agency at Closing on
behalf of Agency hereby represent and warrant that they have
the power, right and authority to bind Agency.
(d)
Agreement
Other Oblioations. Neither the execution of this
nor the consummation of the transaction contemplated
SB2Q01:2046.1
9
by this Agreement shall result in a breach of or constitute a
default under any agreement, document, instrument or any other
obligation to which Agency is a party or by which Agency may
be bound or affected, or under any law, statute, ordinance,
rule, governmental regulation or any writ, injunction, order
or decree of any court or governmental body, applicable to
Agency.
8.2 MDA hereby makes the following representations and
warranties to Agency, which representations and warranties are, and
as of the Close of Escrow shall be, true in all material respects:
(a) Leqall v Bindinq. This Agreement and the other
documents to be executed by MDA hereunder upon execution and
delivery thereof by MDA, will have been duly entered into by
MDA and will constitute legal, valid and binding obligations
of MDA except to the extent that such enforcement may be
limited by applicable bankruptcy, insolvency, moratorium and
other principles relating to or limiting the rights of
contracting parties generally.
(b) Consents. Subject to obtaining the consent of Gold
Mountain, all requisite action has been taken by MDA and all
requisite consents have been obtained in connection with the
entering into this Agreement by MDA and the consummation of
the transactions contemplated by this Agreement, and no
consent of any other party is required.
(c) Authoritv. MDA has the legal power, right and
authority to enter into this Agreement and the instruments and
documents referenced herein, and to consummate the transaction
contemplated hereby. The individuals executing this Agreement
and the instruments referenced herein on behalf of MDA hereby
represent and warrant that they have the power, right and
authority to bind MDA.
(d) Other Obliqations. Neither the execution of this
Agreement nor the consummation of the transaction contemplated
hereby shall result in a breach of or constitute a default
under any agreement, document, instrument, or other obligation
to which MDA is a party or by which MDA or the Property may be
bound, or under any law, statute, ordinance, rule,
governmental regulation or any writ, injunction, order or
decree of any court or governmental body, applicable to MDA or
the Property.
582001:2046.1
10
(e) Litiqation. MDA has no actual current knowledge of
any existing, pending or threatened litigation against MDA or
the Property which could be binding on Agency or the Property
after the Close of Escrow, except as may be disclosed to
Agency in writing during the Due Diligence Period, and except
for the fact that Tenant has filed a voluntary petition for
relief under Chapter 11 of the U.S. Bankruptcy Code. From and
after full and complete execution of this Agreement through
the Closing, MDA shall promptly notify Agency of any such
litigation which, to the actual knowledge of MDA, is
thereafter threatened or pending.
(f) Violations of Law. There are no violations of
governmental laws, ordinances, regulations, rules, permits, or
private covenants, conditions and restrictions with respect to
the Property which MDA has not complied or corrected, except
as disclosed to Agency in writing during the Due Diligence
Period. From and after the full and complete execution of
this Agreement through the Closing, MDA shall promptly notify
Agency of any such violation of law which, to the actual
knowledge of MDA, is thereafter threatened or pending.
(g) The Lease has not been further amended Or modified
except as set forth herein. The Lease is in full force and
effect, subject only to the effect of the Tenant having filed
a voluntary petition for relief under Chapter 11 of the U.S.
Bankruptcy Code and Tenant's default by not making required
payments of rent or other amounts owing under the Lease from
and after those payments due for the month of September, 2000.
Further, MDA is not in default or breach of the Lease, as
amended.
(h) Eminent Domain. MDA has no actual current knowledge
of any pending or threatened proceeding in eminent domain
which would affect the Property or any portion thereof, except
as disclosed in writing to Agency during the Due Diligence
Period. From and after the full and complete execution of
this Agreement through the Closing, MDA shall promptly notify
Agency of any such eminent domain proceeding which, to the
actual knowledge of MDA, is thereafter threatened or pending.
(i) Environmental Violations. Seller has no actual or
constructive knowledge of any violations of any environmental
law referenced in Exhibit "J" to this Agreement with respect
to the Property, nor to MDA's actual current knowledge has MDA
SB2001:2046.1
11
received any written notice that hazardous materials or
substances may be present on the Property which are required
by law to be remediated by MDA and which MDA has not
remediated. MDA has not disposed of or caused a release of
hazardous material or substance on or under the Property.
(j) Insolvencv.
of a petition under
insolvency laws.
MDA has not filed, or been the subject
any federal or state bankruptcy or
(k) MDA has delivered all documents in its possession or
control regarding the ownership and/or operation of Property.
9 Condition of Property: As-Is.
"AS IS." BUYER I S BUYING THE PROPERTY "AS IS" AND, EXCEPT FOR
THOSE REPRESENTATIONS AND WARRANTIES OF SELLER EXPRESSLY SET FORTH
IN SECTION 8.2 ABOVE OR IN THE CLOSING DOCUMENTS, WITHOUT ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, OF
ANY KIND WHATSOEVER, BY SELLER, ITS AGENTS, BROKERS, CONSULTANTS,
COUNSEL, EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, PARTNERS,
TRUSTEES OR BENEFICIARIES OR ANY OTHER PERSON. BUYER SPECIFICALLY
AGREES AND UNDERSTANDS THAT', TENANT HAS FILED A CHAPTER 11
PROCEEDING UNDER THE U. S. BANKRUPTCY CODE. BUYER HAS RECEIVED
NOTICE OF SUCH PROCEEDING AND IS NOT RELYING UPON ANY ADVICE OR
INFORMATION PROVIDED BY SELLER WITH RESPECT TO SUCH PROCEEDING, OR
THE OUTCOME THEREOF.
Agency understands and agrees that Agency is relying solely on
its and its consultants' expertise and financial analysis of the
desirability of purchasing the Property, and except as provided in
8.2 above Agency hereby releases MDA or MDA's Affiliates, and each
of them, from any claims Agency may now or hereafter have against
them as a result of the information they shall have provided to
Agency.
10 Assiqnments/lndemnities,
10.1 Aqencv's Indemnities. At the Close of Escrow, Agency
shall, pursuant to the "Assignment of Lease", the "Assignment of
Parking Agreement" and the "Assignment of Guaranty of Lease"
(collectively, "Assignments"), assume in writing all of MDA' s
obligations under the Lease, the Parking Agreement and the Guaranty
of Lease accruing from and after Close of Escrow and Agency shall
indemnify, defend with counsel reasonably satisfactory to MDA and
SB2001:2046.1
12
hold MDA
actions,
(herein,
incidents
Escrow or
Property.
harmless from any and all losses, claims, liabilities,
causes of action, costs, expenses, judgments and damages
collectively, "Claims") that arise out of events or
on or about the Property occurring after the Close of
that in any way arise out of Agency's ownership of the
10.2 MDA's Indemnities. At the Close of Escrow MDA shall,
pursuant to the Assignments, assign in writing all of MDA' s
obligations under the Lease, the Parking Agreement and the Parking
Structure Agreement accruing from and after Close of Escrow and MDA
shall indemnify, defend with counsel reasonably satisfactory to
Agency and hold Agency harmless from any and all Claims that arise
out of events or incidents on or about the Property occurring prior
to and as of the Close of Escrow or that in any way arise out of
MDA's ownership of the Property.
11 Taxes and Prorations of Certain Expenses,
11.1 All of the documentary transfer taxes in respect to the
subject transaction shall be paid by Agency. There shall be ho
prorations whatsoever and Agency shall take the Property subject to
any amounts owing or to become owing for real property taxes,
insurance and operating expenses, including, but not limited to,
charges for utilities, landscaping and common area expenses. Rent
under the Lease shall not be prorated, and rents that are presently
owing under the Lease shall inure to the benefit of the Agency
while there shall be no adjustment for rents that have been paid
but which have not been earned. At the Close of Escrow, MDA shall
cause to be delivered and disbursed to the Agency, through the
Escrow or as Agency may direct, all monies in the MDA's operating
account for the Property which the MDA estimates shall be in the
approximate amount of Eighty Thousand Dollars ($80,000), less a
reserve for payment of bills which are received after the Closing
in the amount of Seven Thousand Five Hundred Dollars ($7,500).
Within forty five (45) days after the Closing, MDA shall give
Agency an accounting of any bills which were received after the
Closing and which were paid by MDA, and shall remit to Agency the
balance, if any, of such Seven Thousand Five Hundred Dollars
($7,500) reserve. Prior to the Closing, MDA shall provide to
Agency an accounting of the funds in MDA's operating account for
the Property. Pending the Closing, MDA shall continue to pay bills
in respect of the Property including the First Trust Deed payments,
landscaping costs, utilities and other Project related expenses but
882001:2046.1
13
shall not make payments on the Agency Loans. Agency shall have the
right of approval of such accounting prior to the Close of Escrow.
12 Closinq: Deliveries by MDA and Aqency,
12.1 On or before the Closing Date, except as provided below,
MDA shall deliver or cause to be delivered to Escrow Holder the
following:
(a) The Grant Deed executed and acknowledged by MDA;
(b) Two counterparts of the Assignment of Lease in the
form attached as Exhibit "D" executed by MDA and Agency;
(c) Two counterparts of the Assignment of Parking
Agreement in the form attached hereto as Exhibit "E" executed by
MDA and Agency;
(d) All monies in MDA' s operating account for the
Property, estimated to be approximately $80,000.00, less $7,500.00
to be held in trust by MDA for the benefit of the Agency to pcty
bills received by MDA after Closing;
(e) A "Bill of Sale" in the form attached hereto as
Exhibit "G" executed by MDA;
(f) Two counterparts of the Termination of Disposition
and Development Agreement and Mutual Release ("Termination and
Release") in the form attached hereto as Exhibit "H" executed by
MDA;
(g) An affidavit certifying that MDA is not a "foreign
person" within the meaning of Sections 7701 and 1445 of the
Internal Revenue Code of 1986, as amended, and any regulations
promulgated thereunder, and California Form 597-W;
(h) The "Tenant Notice" signed by MDA in the form
attached hereto as Exhibit "I";
(i) Original of the Lease, to the extent in MDA' s
possession (to be delivered to Agency outside of Escrow);
(j) A
satisfactory to
executed by MDA;
Closing Statement
Agency and MDA (the
and
in a form and content
"Closing Statement") duly
SB2001:2046.1
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(k) An estoppel certificate from Tenant certifying that
MDA is not in default or breach of any of the terms of the Lease,
as amended; and
(1)
warranties of
Property; and
MDA's assignment to the Agency of all guaranties and
contractors and subcontractors related to the
(m) Two counterparts of the Assignment of Guaranty of
Lease in the form attached hereto as Exhibit "K" executed by MDA
and Agency; and
(n) Resolutions or other evidence of appropriate actions
of each of the entities subscribing this Agreement on behalf of MDA
authorizing the execution of this Agreement by each such entity and
authorizing the individual or individuals subscribing this
Agreement to bind each entity by their execution of this Agreement;
and
(0) Any other documents, instruments or agreements
reasonably necessary to close the transaction as contemplated ~y
this Agreement.
12.2 All closing documents to be delivered by MDA under this
Section 12.1 are subject to approval by the Agency and its legal
counsel as to form and content.
12.3 On or before the Closing Date, Agency shall deliver to
Escrow Holder the Purchase Price and to MDA or Escrow Holder the
following, in form and substance reasonably acceptable to MDA:
(a) Two counterparts of the Assignment of Lease executed
by Agency;
(b) Two counterparts of the Assignment of Parking
Agreement duly executed by Agency;
(c) Two counterparts of the Assignment of Parking
Structure Agreement duly executed by Agency;
(d) Two counterparts of the Termination and Release
executed by Agency;
(e)
The Closing Statement duly executed by Agency; and
SB2001:2046.1
15
(f) Any other
reasonably necessary
by this Agreement.
documents, instruments or agreements
to close the transaction as contemplated
13 Disbursements and Other Actions bv Escrow Holder.
13.1 Upon the Close of Escrow, Escrow Holder shall perform the
following, in the manner herein below indicated:
(a) Cause the Grant Deed and any other documents that
the parties hereto may mutually direct to be recorded in the
Official Records of San Bernardino County, California;
(b) Disburse to MDA all funds
Holder in payment of the Purchase
therefrom all items chargeable to the
to this Agreement;
deposited with Escrow
Price after deducting
account of MDA pursuant
(c) Deliver the Title Policy, to Agency;
(d) Deliver fully executed counterparts of the
Assignment of Lease, Assignment of Parking Agreement,
Assignment of Parking Structure Agreement and ti)e Mutual
Release to MDA and Agency;
(e) Deliver the executed Bill of Sale to Agency;
(f) Deliver to MDA and Agency conformed copies of all
documents recorded at Close of Escrow; and
(g) Deliver to the appropriate parties any
documents or instruments to be delivered through
pursuant to the terms hereof.
other
Escrow
14 Possession, Risk of Loss,
Possession of the Property shall be given to Agency at the
Close of Escrow. All risk of loss or damage with respect to the
Property shall be borne by MDA prior to and until Closing, and
shall pass from MDA to Agency at the Close of Escrow.
15 Brokeraae Commissions.
Agency and MDA hereby acknowledge and represent that there are
no broker's commissions or finder's fees due in connection with
SB2001:2046.1
16
this transaction. Agency and MDA shall each hold harmless and
indemnify the other from any claims of brokers, agents or finders,
licensed or otherwise, claiming through, under or by reason of the
conduct of the indemnifying party with respect to the transaction
contemplated hereunder except as disclosed above.
16 Notices,
All notices, demands, and requests under this Agreement by
either party shall be hand delivered or sent by United States first
class mail, certified or express, postage prepaid, or by a national
express courier such as Federal Express, U.P.S., etc., or sent by
telecopier or facsimile transmission with confirmation of receipt,
and addressed to the parties as follows:
MDA:
MDA-San Bernardino Associates, LLC
300 Continental Blvd., Suite 360
El Segundo, CA 90245
Attn: Jason Kamm
Telephone: (310) 416-1100
Facsimile: (310) 416-8711
with a copy to:
Greenberg Glusker Fields Clamaq
Machtinger & Kinsella LLP
1900 Avenue of the Stars, Suite 2100
Los Angeles, CA 90067
Attn: Stephen Claman, Esq.
Telephone: (310) 201-7474
Facsimile: (310) 553-0687
Agency:
Redevelopment Agency of the
City of San Bernardino
201 North E Street, Suite 301
San Bernardino, CA 92401-1507
Attn: Gary Van Osdel
Executive Director
Telephone: (909) 663-1044
Facsimile: (909) 888-9413
882001:2046.1
17
with a copy to:
Lewis, D'Amato, Brisbois
& Bisgaard, LLP
650 East Hospitality Lane, Suite 600
San Bernardino, CA 92408
Attn: Timothy J. Sabo
Telephone: (909) 387-1130
Facsimile: (909) 387-1138
Notices, demands, and requests served in the above manner
shall be considered sufficiently given or served for all purposes
under this Agreement at the time the notice, demand or request is
actually delivered to the addresses shown above during normal
business hours, or otherwise the next business day.
17 Assiqnment,
Agency shall have the right to designate vesting in a grantee
other than Agency at Close of Escrow. Except for this right to
designate vesting, Agency shall not assign or attempt to assign
this Agreement, or any rights hereunder to any other person or
entity without the prior written consent of MDA. In any event,
Agency shall remain responsible for the performance of all
obligations of the Agency under this Agreement th~ough and
including the Closing. MDA reserves the right to approve the form
of any assignment. Any assignment or purported assignment (other
than a designation of vesting at Close of Escrow as aforesaid)
which has not received MDA's prior written consent shall be null
and void and of no force and effect whatsoever.
18
InterPretation.
Unless the context of this Agreement clearly requires
otherwise, (a) the plural and singular numbers shall each be deemed
to include the other; (b) the masculine, feminine and neuter
genders shall each be deemed to include the others; (cl "or" is not
exclusive; and (d) "includes" and "including" are not limiting.
Time is of the essence for each and every term, condition,
covenant, obligation and provision of this Agreement.
19 Draftinq InterPretation,
This Agreement has been negotiated at arm's length and between
persons sophisticated and knowledgeable in the matters dealt with
in this Agreement. In addition, each party has been or has had the
opportunity to be represented by experienced and knowledgeable
S82001:2046.1
18
counsel. Accordingly, any rule of law (including California Civil
Code ~1654) or legal decision that would require interpretation of
any ambiguities in this Agreement against the party that has
drafted it is not applicable and is hereby waived. The provisions
of this Agreement shall be interpreted in a reasonable manner to
effect the purpose of the parties and this Agreement.
20 Attornevs' Fees,
Should any party hereto institute any action or proceeding to
enforce any provision hereof by reason of the alleged breach of
this Agreement, the prevailing party shall be entitled to receive
from the losing party such amount as the court may adjudge to be
reasonable attorneys' fees, expert fees, and consultant fees for
services rendered to the prevailing party, and other costs of
litigation. For the purposes of this Agreement, the phrase
"reasonable attorneys' fees" shall include the salaries, costs and
expenses of the attorneys employed in the office of the City
Attorney of the City of San Bernardino.
21 Conflicts,
In the event of a conflict between the provisions of this
Agreement and the provisions of any other documents executed or
purported to be executed between the parties prior to the date
hereof, the provisions contained in this Agreement shall in all
instances govern and prevail.
22 Severabi1itv,
In the event any portion of this Agreement shall be declared
by any court of competent jurisdiction to be invalid, illegal or
unenforceable, such portion shall be severed from this Agreement
and the remaining parts hereof shall remain in full force and
effect as fully as though such invalid, illegal or unenforceable
portion had never been part of this Agreement, provided the
remaining Agreement can be reasonably and equitably enforced.
23 Bindina on Successors.
This Agreement shall be binding upon and inure to the benefit
of the successors and assigns of the respective parties hereto.
882001:2046.1
19
24 Required Actions of Aqencv and MDA,
Agency and MDA agree to execute all such instruments and
documents and to take all actions (including the deposit of funds
in addition to such funds as may be specifically provided for
herein) as may be required in order to consummate the purchase and
sale herein contemplated and shall use their best efforts to
accomplish the Close of Escrow in accordance with the provisions
hereof.
25 Governinq Law and Venue,
The validity of this Agreement and any of its terms or
provisions, as well as the rights and duties of the parties
hereunder, shall be interpreted and construed pursuant to and in
accordance with the laws of the State of California. The parties
select San Bernardino County, California as the proper and sole
venue for any action filed to enforce, construe or interpret this
Agreement.
26 Headinqs,
Section headings have been inserted in this Agreement as a
matter of convenience only; such Section headings are not a part of
this Agreement and shall not be used in the interpretation of this
Agreement.
27 Entire Aqreement.
This Agreement constitutes the final, complete and exclusive
statement of the terms of the agreement between the parties
pertaining to the subject matter of this Agreement and supersedes
all prior and contemporaneous understandings or agreements of the
parties. No party has been induced to enter into this Agreement
~ by, nor is any party relying on, any representation or warranty
outside those expressly set forth in this Agreement.
28 Counterparts; Facsimile Siqnatures,
This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which, together, shall
constitute one and the same instrument. Agency and MDA each (i)
agrees to permit the use of telecopied signatures, from time to
time, where appropriate in order to expedite the transaction
contemplated by this Agreement, (ii) intends to be bound by its
SB2001:2046.1
20
respective telecopied signature, (iii) is aware that the other
party will rely on the telecopied signature, and (iv) acknowledges
such reliance and waives any defenses to the enforcement of the
documents and notices effecting the transaction contemplated by
this Agreement based on the fact that a signature or notice was
sent by telecopy.
29 No Third Partv Benefit,
Except as provided in Sections 19 and 25, the parties
acknowledge and agree that the provisions of this Agreement are for
the sole benefit of the parties hereto and are not for the benefit,
directly or indirectly, of any other person or entity.
30 Business Davs.
In the event that the Closing Date or the last day of the Due
Diligence Period falls on a Saturday, Sunday or holiday, then the
time for performances due hereunder on or before such date shall be
performed, if at all, on the next business day.
31 Glossarv.
The
following
capitalized
meanings:
terms
in
the
Agreement
shall
have
the
"As Is" shall have the meaning ascribed to such term in
Article 9.
"Assignment of Lease" shall have the meaning ascribed to
such term in Section 12.1(b).
"Assignment of Parking Agreement" shall have the meaning
ascribed to such term in Section 12.1(c)
"Bill of Sale" shall have the meaning ascribed to such
term in Section 12.1(e).
"Agency" shall mean the Redevelopment Agency of the City
of San Bernardino, a public body corporate and politic of the State
of California.
"Claims" shall have the meaning ascribed to such term in
Section 11. 1.
SB2001:2046.1
21
"Close of Escrow" shall have the meaning ascribed to such
term in Section 5.2.
"Closing" shall have the meaning ascribed to such term in
Section 5.2.
"Closing Date" shall have the meaning ascribed to such
term in Section 5.2.
"Closing Statement" shall have the meaning ascribed to
such term in Section 12.1(j).
"Date of Agreement" shall have the meaning ascribed to
such term in Section 5.2.
"Due Diligence Documents" shall have the meaning ascribed
to such term in Section 7.3.
"Due Diligence Period" shall have the meaning ascribed to
such term in Section 7.1(a).
"Escrow" shall have the meaning ascribed to such term in
Section 5.1.
"Escrow Holder" shall have the meaning ascribed to such
term in Section 5.1.
"Escrow Holder's General provisions" shall have the
meaning ascribed to such term in Section 5.1.
"Gold Mountain" shall mean Gold Mountain Financial
Institution, Inc., a California corporation.
"Grant Deed" is attached as Exhibit "C."
Lease" shall have the meaning ascribed to such term in
Section 2.3.
"Natural Hazard Disclosure Statement" shall have the
meaning ascribed to such term in Section 7.3(c).
"Opening of Escrow" shall have the meaning ascribed to
such term in Section 5.2.
SB2001:2Q46.1
22
"Personal Property" shall have the meaning ascribed to
such term in Section 3.2(c).
"Property" shall have the meaning ascribed to such term
in Section 3.2.
"Purchase Price" shall have the meaning ascribed to such
term in Article 4.
"Reports" shall have the meaning ascribed to such term in
Section 7.6(a).
"MOA" shall mean MDA-San Bernardino Associates, LLC, a
Delaware limited liability company.
"Tenant" shall means Cinemastar Company Theaters, Inc.,
a California corporation.
"Tenant Notice" shall have the meaning ascribed to such
term in Section 12.1(h).
"Termination and Release" shall have the meaning ascribed
to such term in Section 12.1(f).
"Title Company" shall mean First American Title Insurance
Company.
"Title Policy" shall have the meaning ascribed to such
term in Section 7.6(c).
SB2QOl:2046.1
23
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first written above.
"SELLER"
MDA-SAN BERNARDINO ASSOCIATES, LLC,
a Delaware limited liability company
By: SK Investors No.1, L.L.C., a
Delaware limited liability company
By: SK Metro Development L.P.,
a California limited partnership
Its Sole Member
By: SK Metro Corp.,
a California corporation
Its General Partner
By:
Rex Swanson, President
"BUYER"
REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO, a public body corporate and
politic of the State of California
By:
Name:
Its:
By:
Name:
Its:
SB2001:2046.1
24
EXHIBIT "Au
LEGAL DESCRIPTION
PARCELS 1 AND 2 OF PARCEL MAP NO. 15038, IN THE CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER
PLAT RECORDED IN BOOK 186 OF PARCEL MAPS, PAGE (S) 14 AND 15,
RECORDS OF SAID COUNTY.
TOGETHER WITH ALL APPURTENANT EASEMENTS, INCLUDING, WITHOUT
LIMITATION, THE EASEMENT CONTAINED IN THE DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS AND RECIPROCAL EASEMENTS, RECORDED
DECEMBER 29, 1998, INSTRUMENT NUMBER 98-556710, SAN BERNARDINO
COUNTY RECORDS, AND THE EASEMENTS CONTAINED IN THE PARKING
AGREEMENT RECORDED DECEMBER 29, 1998, INSTRUMENT NUMBER 98-556712,
SAN BERNARDINO COUNTY RECORDS.
882001:2046.1
EXHIBIT "B"
ESCROW COMPANY GENERAL PROVISIONS
882001:2046.1
1
EXHIBIT "C"
FORM OF GRANT DEED
882001:2046.1
RECORDING REQUESTED BY, AND WHEN
RECORDED MAIL TO:
Greenberg G1usker Fields C1aman
Machtinger and Kinsella LLP
1900 Avenue of the Stars, Suite 2100
Los Angeles, CA 90067
MAIL TAX STATEMENTS TO:
Greenberg Glusker Fields C1aman
Machtinger and Kinsella LLP
1900 Avenue of the Stars, Suite 2100
Los Angeles, CA 90067
GRANT DEED
THE UNDERSIGNED GRANTOR declares: Documentary transfer tax: See
statement attached.
MDA-SAN BERNARDINO ASSOCIATES, LLC, a California limited liability
company,
HEREBY GRANTS TO: the REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO, a body corporate and public of the State of California,
the following property in the Co~ty of San Bernardino, State of
California:
SEE EXHIBIT "A" ATTACHED HERETO AND INCORPORATED HEREIN BY
THIS REFERENCE.
"GRANTOR"
MDA-SAN BERNARDINO ASSOCIATES, LLC, a
California limited liability company
By: SK Investors No.1, L.L.C., a
Delaware limited liability company
By: SK Metro Development, L.P., a
California limited partnership
Its: Sole Member
By: SK Metro Corp., a
California corporation
Its: General Partner
Dated:
, 2001
By:
Rex Swanson, President
5684300034-1181483.1
1
NOTARIAL ACKNOWLEDGMENT
STATE OF CALIFORNIA
)
) ss.
)
COUNTY OF LOS ANGELES
On , 2001, before me,
Notary Public, personally appeared Rex Swanson, 0 personally known
to me OR 0 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
(Seal)
5684300034-1181483.1
2
EXHIBIT "A"
TO GRANT DEED
Legal Description
PARCELS 1 AND 2 OF PARCEL MAP NO. 15038, IN THE CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER
PLAT RECORDED IN BOOK 186 OF PARCEL MAPS, PAGE (S) 14 AND 15,
RECORDS OF SAID COUNTY.
TOGETHER WITH ALL APPURTENANT EASEMENTS, INCLUDING, WITHOUT
LIMITATION, THE EASEMENT CONTAINED IN THE DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS AND RECIPROCAL EASEMENTS, RECORDED
DECEMBER 29, 1998, INSTRUMENT NUMBER 98-556710, SAN BERNARDINO
COUNTY RECORDS, AND THE EASEMENTS CONTAINED IN THE PARKING
AGREEMENT RECORDED DECEMBER 29, 1998, INSTRUMENT NUMBER 98-556712,
SAN BERNARDINO COUNTY RECORDS.
5684300034-1181483.1
3
.,
882001:2046.1
EXHIBIT "D"
ASSIGNMENT AND ASSUMPTION OF LEASE
ASSIGNMENT AND ASSUMPTION OF LEASE
1. Parties. This Assignment and Assumption of Lease, dated as
of , 2001 ("Assignment"), is entered into by and
between MDA-SAN BERNARDINO ASSOCIATES, LLC, a California limited
liability company ("Assignor") and the REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO, a public body corporate and politic
of the State of California ("Assignee"). Assignor and Assignee
are sometimes collectively referred to as the "Parties" or
individually as a "Party."
2. Recitals.
2.1 Assignor and Assignee are parties to that Purchase and
Sale Agreement and Joint Escrow Instructions dated January
2001 ("Purchase Agreement") whereby Assignor, as seller, agreed
to sell to Assignee, as buyer, the real property described on
Exhibit "A" attached hereto(the "Property"). The Purchase
Agreement is incorporated herein by this reference as though set
forth in full. All capitalized terms not defined herein shall
have the definitions Set forth in the Purchase Agreement.
2.2 Assignor desires to assign to Assignee as of the
Closing Date Assignor's interest in that certain Multi-Plex
Theater Lease dated December 20, 1996 between Assignor, as
landlord, and Cinemastar Luxury Theaters, Inc., a California
corporation, as tenant ("the "Lease"), which Lease covers the
Property, and Assignee desires to accept such assignment and
assume the obligations of the landlord under the Lease accruing
from and after the Closing Date.
2.3 For and in consideration of the consummation of the
transactions specified in the Purchase Agreement and in order to
consummate such transactions as required by the Purchase
Agreement, Assignor and Assignee enter into and execute this
Assignment.
3. Assiqnment and Assumption.
3.1 For valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Assignor hereby transfers,
grants, conveys and assigns to Assignee all of Assignor's right,
title and interest in, to and under the Lease, and all rents
which have accrued which are past due, and all the right, title
and interest of Assignor to the extent they are in Assignor's
5684300034-1181511.1
1/26/01
possession in prepaid rents, any security deposit, and all sums
held by Assignor as landlord under the Lease, and Assignee
hereby accepts such assignment and assumes and agrees with
Assignor to perform and comply with and to be bound by all terms,
covenants, agreements, provisions and conditions of the Lease
accruing from and after the Closing Date, in the same manner and
with the same force and effect as if Assignee had originally
executed the Lease.
3.2 Assignor hereby agrees to indemnify, defend and hold
harmless Assignee and Assignee's affiliates, and their respective
officers, directors, trustees, shareholders, partners, members,
employees, agents, lenders, attorneys, successors and assigns
(collectively, the "Assignee Indemnitees"), from and against any
and all liabilities, losses, damages, claims, actions, causes of
action, costs and expenses (including without limitations,
attorneys' fees and costs) accruing under the Lease prior to the
Closing Date and Assignee hereby indemnifies, holds harmless and
agrees to defend Assignor and Assignor's affiliates, and their
respective officers, directors, trustees, shareholders, partners,
members, employees, agents, attorneys, successors and assigns
(collectively, the "Assignor Indemnitees"), from and against all
liabilities, losses, damages, claims, actions, causes of. action,
costs, and expenses (including without limitation, attorneys fees
and costs) accruing under the Lease on or after the Closing Date
(excluding actions arising out of the negligence or willful
misconduct of the Assignor Indemnitees) .
3.3 This Assignment shall inure to the benefit of and be
binding on the respective legal representatives, successors and
assigns of the Parties.
3.4 Except for representations expressly set forth in the
Purchase Agreement, this Assignment is made without any
representations or warranties, express or implied.
4. Miscellaneous.
4.1 Attornevs' Fees. In the event of any litigation or
proceeding (an "action") between the parties hereto for breach of
or to enforce any provision or right hereunder, the unsuccessful
party in such action shall pay to the successful party all costs
and expenses, expressly including but not limited to, reasonable
attorneys' fees incurred by the successful party in connection
with such action. The successful party shall be that party who,
5684300034-1181511.1
2
1/26/01
in the light of the issues litigated and the court's decisions on
those issues, was more successful in the action. The party who
was more successful need not be determined to be the party who
recovers a judgment in the action. An action shall include
proceedings in bankruptcy court.
4.2 Successors. This Assignment shall be binding upon and
inure to the benefit of each of the parties hereto and to their
respective successors and assigns.
4.3 Further Action. Assignor and Assignee shall at any
time, or from time to time after the execution of this Assignment
and whether before or after the Close of Escrow, upon request of
the other, execute and deliver such further documents and do such
further acts and things as such party may reasonably request in
order to fully effect the purpose of this Assignment of Service
Contracts.
4.4 Counterparts. This Assignment may be executed in any
number of counterparts, each of which shall be deemed an
original, and all of which when taken together shall constitute"
but one and the same agreement.
4.5 Governinq Law. This Assignment shall be governed by
and construed in accordance with the.laws of the State of
California.
4.6 Modifications. This Assignment may not be altered,
amended, changed, terminated or modified in any respect or
particular, unless the same shall be in writing and signed by the
party to be charged.
4.7 Severability. Wherever possible, each provision of
this Assignment shall be interpreted in such a manner as to be
valid under applicable law, but if any provision of this
Assignment shall be invalid or prohibited thereunder, such
provision shall be effective to the extent of such prohibition
without invalidating the remainder of such provision or the
remaining provisions of this Assignment which shall remain fully
binding and in full force and effect.
4.8 HeadinGS. The headings of the paragraphs of this
Assignment are inserted solely for convenience of reference and
are not a part of, and are not intended to govern, limit or aid
in the construction of, any term or provision hereof.
5684300034-1181511.1
3
1/26/01
4.9 Gender. When necessary herein, all terms used in the
singular shall apply to the plural, and all terms used in the
masculine or feminine genders shall apply to the neuter.
IN WITNESS WHEREOF, the Parties hereto have executed this
Assignment effective as of the date first above written.
"ASSIGNOR"
MDA-SAN BERNARDINO ASSOCIATES, LLC,
a California limited liability company
By: SK Investors No.1, L,L.C., a
Delaware limited liability company
By: SK Metro Development L.P.,
a California limited partnership
Its Sole Member
By: SK Metro Corp.,
a California corporation
Its General Partner
By:
Rex Swanson, President
"ASSIGNEE"
REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO, a public body corporate and
politic of the State of California
By:
Name:
Its:
By:
Name:
Its:
5684300034-1181511.1
4
1/26/01
EXHIBIT A
TO ASSIGNMENT AND ASSUMPTION OF LEASE
LEGAL DESCRIPTION
PARCELS 1 AND 2 OF PARCEL MAP NO. 15038, IN THE CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER
PLAT RECORDED IN BOOK 186 OF PARCEL MAPS, PAGE(S) 14 AND 15,
RECORDS OF SAID COUNTY.
TOGETHER WITH ALL APPURTENANT EASEMENTS, INCLUDING, WITHOUT
LIMITATION, THE EASEMENT CONTAINED IN THE DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS AND RECIPROCAL EASEMENTS,
RECORDED DECEMBER 29, 1998, INSTRUMENT NUMBER 98-556710, SAN
BERNARDINO COUNTY RECORDS, AND THE EASEMENTS CONTAINED IN THE
PARKING AGREEMENT RECORDED DECEMBER 29, 1998, INSTRUMENT NUMBER
98-556712, SAN BERNARDINO COUNTY RECORDS.
5684300034-1181511.1
5
1/26/01
EXHIBIT "E"
ASSIGNMENT AND ASSUMPTION OF PARKING AGREEMENT
882001:2046.1
ASSIGNMENT AND ASSUMPTION OF PARKING AGREEMENT
1. Parties. This Assignment and Assumption of Parking
Agreement, dated as of , 2001 ("Assignment"), is
entered into by and between MDA-SAN BERNARDINO ASSOCIATES, LLC, a
California limited liability company ("Assignor") and the
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body
corporate and politic of the State of California ("Assignee").
Assignor and Assignee are sometimes collectively referred to as
the "Parties" or individually as a "Party."
2. Recitals.
2.1 Assignor and Assignee are parties to that Purchase and
Sale Agreement and Joint Escrow Instructions dated January ___,
2001 ("Purchase Agreement") whereby Assignor, as seller, agreed
to sell to Assignee, as buyer, the real property described on
Exhibit "A" attached hereto (the "Property"). The Purchase
Agreement is incorporated herein by this reference as though set
forth in full. All capitalized terms not defined herein shall
have the definitions set forth in the Purchase Agreement.
2.2 Assignor desires to assign to Assignee as of the
Closing Date Assignor's interest under that certain Parking
Agreement dated December 10, 1998, recorded in the Official
Records of San Bernardino County, California as Document Number
19980556712, between Assignor and Assignee (the "Parking
Agreement"), and Assignee desires to accept such assignment and
assume the obligations of the Assignor under the Parking
Agreement accruing from and after the Closing Date.
2.3 For and in consideration of the consummation of the
transactions specified in the Purchase Agreement and in order to
consummate such transactions as required by the Purchase
Agreement, Assignor and Assignee enter into and execute this
Assignment.
3. AssiGnment and Assumption.
3.1 For valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Assignor hereby transfers,
grants, conveys and assigns to Assignee all of Assignor's right,
title and interest in, to and under the Parking Agreement, and
Assignee hereby accepts such assignment and assumes and agrees
with Assignor to perform and comply with and to be bound by all
5684300034-1181843.1
1/26/01
terms, covenants, agreements, provisions and conditions of the
Parking Agreement accruing from and after the Closing Date, in
the same manner and with the same force and effect as if Assignee
had originally executed the Parking Agreement.
3.2 Assignor hereby agrees to indemnify, defend and hold
harmless Assignee and Assignee's affiliates, and their respective
officers, directors, trustees, shareholders, partners, members,
employees, agents, lenders, attorneys, successors and assigns
(collectively, the "Assignee Indemnitees"), from and against any
and all liabilities, losses, damages, claims, actions, causes of
action, costs and expenses (including without limitations,
attorneys' fees and costs) accruing under the Parking Agreement
prior to the Closing Date and Assignee hereby indemnifies, holds
harmless and agrees to defend Assignor and Assignor's affiliates,
and their respective officers, directors, trustees, shareholders,
partners, members, employees, agents, attorneys, successors and
assigns (collectively, the "Assignor Indemnitees"), from and
against all liabilities, losses, damages, claims, actions, causes
of action, costs, and expenses (including without limitation,
attorneys fees and costs) accruing under the Parking Agreement 'on
or after the Closing Date (excluding actions arising out of the
negligence or willful misconduct of the Assignor Indemnitees) .
3.3 This Assignment shall inure to the benefit of and be
binding on the respective legal representatives, successors and
assigns of the Parties.
3.4 Except for representations expressly set forth in the
Purchase Agreement, this Assignment is made without any
representations or warranties, express or implied.
4. Miscellaneous.
4.1 Attornevs' Fees. In the event of any litigation or
proceeding (an "action") between the parties hereto for breach of
or to enforce any provision or right hereunder, the unsuccessful
party in such action shall pay to the successful party all costs
and expenses, expressly including but not limited to, reasonable
attorneys' fees incurred by the successful party in connection
with such action. The successful party shall be that party who,
in the light of the issues litigated and the court's decisions on
those issues, was more successful in the action. The party who
was more successful need not be determined to be the party who
recovers a judgment in the action. An action shall include
5684300034-1181643.1
2
1/26/01
proceedings in bankruptcy court.
4.2 Successors. This Assignment shall be binding upon and
inure to the benefit of each of the parties hereto and to their
respective successors and assigns.
4.3 Further Action. Assignor and Assignee shall at any
time, or from time to time after the execution of this Assignment
and whether before or after the Close of Escrow, upon request of
the other, execute and deliver such further documents and do such
further acts and things as such party may reasonably request in
order to fully effect the purpose of this Assignment of Service
Contracts.
4.4 Counterparts. This Assignment may be executed in any
number of counterparts, each of which shall be deemed an
original, and all of which when taken together shall constitute
but one and the same agreement.
4.5 GoverninG Law. This Assignment shall be governed by
and construed in accordance with the laws of the State of
California.
4.6 Modifications. This Assignment may not be altered,
amended, changed, terminated or modified in any respect or
particular, unless the same shall be in writing and signed by the
party to be charged.
-.
4.7 Severability. Wherever possible, each provision of
this Assignment shall be interpreted in such a manner as to be
valid under applicable law, but if any provision of this
Assignment shall be invalid or prohibited thereunder, such
provision shall be effective to the extent of such prohibition
without invalidating the remainder of such provision or the
remaining provisions of this Assignment which shall remain fully
binding and in full force and effect.
4.8 HeadinGs. The headings of the paragraphs of this
Assignment are inserted solely for convenience of reference and
are not a part of, and are not intended to govern, limit or aid
in the construction of, any term or provision hereof.
4.9 Gender. When necessary herein, all terms used in the
singular shall apply to the plural, and all terms used in the
masculine or feminine genders shall apply to the neuter.
5684300034-1181643.1
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1/26/01
IN WITNESS WHEREOF, the Parties hereto have executed this
Assignment effective as of the date first above written.
"ASSIGNOR"
MDA-SAN BERNARDINO ASSOCIATES, LLC,
a California limited liability company
By: SK Investors No.1, L.L.C., a
Delaware limited liability company
By: SK Metro Development L.P.,
a California limited partnership
Its Sole Member
By: SK Metro Corp.,
a California corporation
Its General Partner
By:
Rex Swanson, President
"'ASSIGNEE"
REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO, a public body corporate and
politic of the State of California
By:
Name:
Its:
By:
Name:
Its:
5684300034-1181643.1
4
1/26/01
EXHIBIT A
TO ASSIGNMENT AND ASSUMPTION OF PARKING AGREEMENT
LEGAL DESCRIPTION
PARCELS 1 AND 2 OF PARCEL MAP NO. 15038, IN THE CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER
PLAT RECORDED IN BOOK 186 OF PARCEL MAPS, PAGE(S) 14 AND 15,
RECORDS OF SAID COUNTY.
TOGETHER WITH ALL APPURTENANT EASEMENTS, INCLUDING, WITHOUT
LIMITATION, THE EASEMENT CONTAINED IN THE DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS AND RECIPROCAL EASEMENTS,
RECORDED DECEMBER 29, 1998, INSTRUMENT NUMBER 98-556710, SAN
BERNARDINO COUNTY RECORDS, AND THE EASEMENTS CONTAINED IN THE
PARKING AGREEMENT RECORDED DECEMBER 29, 1998, INSTRUMENT NUMBER
98-556712, SAN BERNARDINO COUNTY RECORDS.
5684300034-1181643.1
5
1/26/01
EXHIBIT "F"
BILL OF SALE
882001:2046.1
BILL OF SALE
1. Identification and Parties.
This Bill of Sale is dated as of the day of
, 2001, and is made MDA-SAN BERNARDINO ASSOCIATES, LLC,
a California limited liability company ("Seller") in favor of the
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body
corporate and politic of the State of California ("Buyer").
2. Recitals.
2.1. Seller and Buyer entered into that certain Purchase and
Sale Agreement and Escrow Instructions dated as of January
2001 (the "Agreement") whereby Seller agreed to sell and Buyer'
agreed to purchase that certain real property and improvements
described with more particularity therein (the "Real Property"),
together with all Personal Property as defined therein.
Capitalized terms herein shall have the same meaning as in the
Agreement, unless the context clearly provides to the contrary.
2.2. The Agreement requires the execution and delivery of
this Bill of Sale.
2.3. For valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Seller hereby executes this Bill
of Sale.
3. Transfer.
Seller hereby releases, remises, transfers and quit claims
to Buyer all of Seller's right, title and interest in all
Personal Property located on and used in connection with the
operation of the Improvements, including but not limited to, (i)
fixtures, heating, ventilation and air conditioning fixtures and
equipment, lighting, and electrical and plumbing fixtures and
5684300034-1181544.1
1/26/01
equipment, (ii) all intangible personal property used in
connection with the Real Property_
MDA-SAN BERNARDINO ASSOCIATES, LLC,
a California limited liability company
By: SK Investors No.1, L.L.C., a
Delaware limited liability company
By: SK Metro Development L.P.,
a California limited partnership
Its Sole Member
By: SK Metro Corp.,
a California corporation
Its General Partner
By:
Rex Swanson, President
5684300034-1181544.1
2
1/26/01
882001:2046.1
EXHIBIT "G"
TERMINATION AGREEMENT AND MUTUAL RELEASE
TERMINATION AGREEMENT
AND MUTUAL RELEASE
1. Parties. This TERMINATION AGREEMENT AND MUTUAL RELEASE
("Agreement"), dated as of January ,2001, is entered into by
and between MDA-SAN BERNARDINO ASSOCIATES, LLC, a California
limited liability company ("MDA"), and the REDEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO, a public body corporate and
politic of the State of California ("Agency").
2. Recitals.
2.1 MDA and Agency entered into that certain Disposition
and Development Agreement (the "DDA") which is recorded in the
Official Records of San Bernardino County, California ("Official
Records") on December 29, 1998 as Document No. 19980556709.
2.2 Pursuant to the DDA, MDA acquired a parcel of real
property (the "Property") upon which MDA constructed a multi-
screen cinema complex with related common areas. MDA's
acquisition of the Property and construction of the above-
referenced cinema project was implemented with conventional
financing and with financial assistance from Agency.
2.3 The Property has entered into a lease with Cinemastar
Luxury Theaters, Inc. as Tenant. Such lease is in default and
MDA has encountered financial difficulties in servicing the
indebtedness secured by the Property.
2.4 MDA has agreed to sell and convey the Property to
Agency and Agency has agreed to purchase and acquire the Property
pursuant to that certain Purchase and Sale Agreement and Joint
Escrow Instructions dated as of January ____, 2001 (the "Purchase
Agreement"). Capitalized terms herein used not otherwise defined
shall have the meanings ascribed to such terms as set forth in
the Purchase Agreement.
2.5 Pursuant to the Purchase Agreement and in connection
with Agency's purchase and acquisition of the Property, MDA and
Agency have agreed to terminate the DDA and in connection
therewith to release one another from any and all further
obligations and liabilities relating to the DDA, the Property,
the Agency Note and the Second Agency Note.
5684300034-1181359.1
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3. Termination.
3.1 MDA and Agency hereby agree that the DDA is hereby
terminated and of no further force and effect and neither MDA nor
Agency shall have further obligations to one another thereunder
whatsoever and neither shall have further rights thereunder. MDA
expressly relinquishes all rights to purchase and acquire from
Agency additional real property, including, but not limited to,
the Retail Parcel (defined in the DDA) .
4. Mutual Release.
4.1 For good and valuable consideration, including but not
limited to their mutual agreement to terminate the DDA, except
for such rights and obligations that have been created or
preserved under this Agreement, or under the Purchase Agreement,
MDA on the one hand and Agency on the other hand, do hereby
fully, completely, finally and forever release and discharge each
other and their respective officers, agents, employees,
attorneys, successors, heirs, and assigns from any and all
claims, actions, causes of action, demands, rights, debts,
promises, liabilities, damages, accountings, costs and expenses,
whether known or unknown, suspected or unsuspected, of every
nature whatsoever, which any of them has or may have against the
other with respect to any and all matters arising out of the DDA
or pertaining to the Property, the Agency Note and the Second
Agency Note, all of which released matters shall sometimes
hereinafter be called the "Released Claims".
IT IS THE INTENTION OF THE PARTIES HERETO THAT THIS
DOCUMENTS SHALL BE EFFECTIVE AS A FULL AND FINAL RELEASE OF EVERY
RELEASED CLAIM. IN FURTHERANCE OF THIS INTENTION, THE PARTIES
HERETO, AND EACH OF THEM, ACKNOWLEDGE THAT THEY HAVE BEEN ADVISED
BY THEIR LEGAL COUNSEL AND ARE FAMILIAR WITH THE PROVISIONS OF
CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES AS FOLLOWS:
"A general release does not extend to claims
which the creditor does not know or suspect
to exist in his favor at the time of
executing the release, which, if known by
him, must have materially affected his
settlement with the debtor."
THE PARTIES HERETO, BEING AWARE OF THIS CODE SECTION, HEREBY
EXPRESSLY WAIVE ANY RIGHTS THEY MAY HAVE THEREUNDER, AS WELL AS
5684300034-1181359.1
2
1/26/01
UNDER ANY OTHER STATUTES OR COMMON LAW DOCTRINES OF SIMILAR
EFFECT.
The parties hereto, and each of them, acknowledge that
hereafter they may discover facts in addition to, or different
from, those that they now know or believe to be true with respect
to the subject matter of this Agreement and the Released Claims,
but that, notwithstanding the foregoing, it is their intention
hereby to fully and forever settle and release each of the
Released Claims, and that in furtherance of this intention, the
releases herein given shall be and remain in effect as full 'and
complete releases.
5. OWnership of Claims. The parties hereby represent and
warrant to each other that, as to any Released Claim, each of
them is the sole and absolute owner of each Released Claim
released by it or him, free and clear of all other rights and
interest therein, and has the right, ability and sole power to
release said Released Claims.
6. Attornevs' Fees. In the event there is any dispute
concerning or arising out of the terms of this Agreement or the
performance of any party heretb with respect to the term~ of the
Agreement, the prevailing party in such dispute shall be entitled
to recover, in addition to its costs, all attorneys' fees and
expenses reasonably incurred by it.
7. Counterparts. This Agreement may be signed in counterparts,
and all counterparts taken together shall constitute one
agreement.
8. Severabilitv. If any provision of this Agreement is held,
determined or adjudicated to be invalid or unenforceable for any
reason by any court of competent jurisdiction, such provision
shall be severed from the remaining provisions of the Agreement
and shall not affect the validity or unenforceability of the
remaining provisions.
9. Intearation. The parties hereby expressly agree that this
Agreement constitutes the entire agreement between the parties
relating to the settlement of the Action. It supersedes all
prior negotiations, promises, covenants, agreements and
representations, if any, between the parties relating to the
settlement of the Action.
5684300034-1181359.1
3
1/26/01
10. Controllinq Law.
construed and enforced
of California.
This Agreement shall be interpreted,
in accordance with the laws of the State
11. Successors. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors,
executors, administrators, trustees, heirs, personal
representatives and assigns.
IN WITNESS WHEREOF, the parties hereto execute this
Agreement on the date set forth opposite their respective
signatures.
"MDA'f
MDA-SAN BERNARDINO ASSOCIATES, LLC,
a California limited liability company
By: SK Investors No.1, L.L.C., a
Delaware limited liability company
By: SK Metro Development L.P.,.
a California limited partnership
Its Sole Member
By: SK Metro Corp.,
a California corporation
Its General Partner
By:
Rex Swanson, President
"AGENCY"
REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO, a public body corporate and
politic of the State of California
By:
Name:
Its:
5664300034-1181359.1
4
1/26/01
EXHIBIT "H"
TENANT NOTICE
.
SB2001:2046.1
Form of Tenant Notice
(Date)
REFERENCE:
Dear
This letter is to provide you with notification that MDA-SAN
BERNARDINO ASSOCIATES, LLC has reached an agreement whereby
Landlord's interest in the above-referenced property has been
transferred to The Redevelopment Agency of the City of San
Bernardino. As of [closinq date] ,please send all rent
checks and please address all notices or other communications to
Landlord at the following location:
The Redevelopment Agency of the City of San Bernardino
201 North E. Street, Suite 301
San Bernardino, CA 9~401-1507
For property maintenance issues please call
We would like to express our sincere appreciation for the
business relationships we have enjoyed with your firm and wish
you continued success in the future.
Sincerely,
MDA-SAN BERNARDINO ASSOCIATES, LLC,
a California limited liability company
By: SK Investors No.1, L.L.C., a
Delaware limited liability company
By: SK Metro Development L.P.,
a California limited partnership
Its Sole Member
By: SK Metro Corp.,
a California corporation
Its General Partner
By:
Rex Swanson, President
5664300034-1181550.1
EXHIBIT "I"
HAZARDOUS MATERIALS AND ENVIRONMENTAL LAWS DEFINED
"Hazardous Materials" as used in this Agreement shall mean any
hazardous or toxic materials, pollutants, effluents, contaminants,
radioactive materials, flammable explosives, chemicals known to
cause cancer or reproductive toxicity, emissions or wastes and any
other chemical, material or substance, the handling, storage,
release, transportation, or disposal of which is or becomes
prohibited, limited or regulated, is or becomes known to pose a
hazard to the health and safety of the occupants of the Property
including, without limitation, (i) asbestos, (ii) petroleum and
petroleum by-products, (iii) urea formaldehyde foam insulation,
(iv) polychlorinated biphenyls, (v) all substances now or hereafter
designated as "hazardous substances", "hazardous materials", or
"toxic substances" pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA"), 42
U.S.C. Section 9601, et seq., as amended by the Superfund
Amendments and Reauthorization Act of 1986 ("SARA"), the Federal
Water pollution Control Act, 33 U.S.C. Section 1251 et seq., the
Clean Air Act, 42 U.S.C. Section 7401 et seq., the Hazardous
Materials Transportation Act, 49 U.S.C. Section 1801 et. seq., or
the Resource, Conservation and Recovery Act, 42 U.S.C. Section 6901
et seq.; (vi) all substances now or hereafter designated as
"hazardous wastes" in Section 25117 of the California Health and
Safety Code; (vii) all substances now or hereafter designated by
the Governor of the State of California pursuant to the Safe
Drinking Water and Toxic Enforcement Act of 1986 as being known to
cause cancer or reproductive toxicity, or (viii) all substances now
or hereafter designated "hazardous substances" , "hazardous
materials" or "toxic substances" under any other federal, state or
local laws or in any regulations adopted and publications
promulgated pursuant to said laws.
SB2001:2046.1
EXHIBIT "J"
ASSIGNMENT OF GUARANTY OF LEASE
SB2001:2046.1
9
ASSIGNMENT OF GUARANTY OF LEASE
1. Parties. This Assignment of Guaranty of Lease, dated as of
, 2001 ("Assignment"), is entered into by and between
MDA-SAN BERNARDINO ASSOCIATES, LLC, a California limited
liability company ("Assignor") and the REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO, a public body corporate and politic
of the State of California ("Assignee"). Assignor and Assignee
are sometimes collectively referred to as the "Parties" or
individually as a "Party."
2. Recitals.
2.1 Assignor and Assignee are parties to that Purchase and
Sale Agreement and Joint Escrow Instructions dated January
2001 ("Purchase Agreement") whereby Assignor, as seller, agreed
to sell to Assignee, as buyer, the real property described on
Exhibit "A" attached to the Purchase Agreement (the "Property").
The Purchase Agreement is incorporated herein by this reference
as though set forth in full. All capitalized terms not defined'
herein shall have the definitions set forth in the Purchase
Agreement.
2.2 In connection with the sale of the Property by Assignor
and the purchase of the Property by Assignee, Assignor will
assign to Assignee as of the Closing Date Assignor's interest in
that certain Multi-Plex Theater Lease dated December 20, 1996
between Assignor, as landlord, and CinemaStar Luxury Theaters,
Inc., a California corporation ("CinemaStar"), as tenant (the
"Lease") which covers the Property.
2.3 Assignor desires to assign to Assignee as of the
Closing Date that certain Guaranty of Lease relating to the Lease
executed on December 20, 1996 by John Ellison, Jr., Alan
Grossberg, Jerry Willits and Russell Seheult (individually, a
"Guarantor" and collectively, the "Guarantors"), pursuant to
which each Guarantor irrevocably, unconditionally, jointly and
severally guarantees the full, timely and complete (a) payment of
all rent and other sums payable by CinemaStar to Assignor .
pursuant to the Lease, and any amendments or modifications
thereto by agreement or course of conduct and (b) performance of
all covenants, representations and warranties made by CinemaSatr
and all obligations to be performed by CinemaS tar pursuant to the
Lease, and any amendments or modifications thereto by agreement
or course of conduct (the "Guaranty of Lease"), and Assignee
582001,2614.1
1/26/01
desires to accept such assignment.
2.2 For and in consideration of the consummation of the
transactions specified in the Purchase Agreement and in order to
consummate such transactions as required by the Purchase
Agreement, Assignor and Assignee enter into and execute this
Assignment.
3. AssiGnment.
3.1 For valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Assignor hereby transfers,
grants, conveys and assigns to Assignee all of Assignor's right,
title and interest in, to and under the Guaranty of Lease, and
Assignee hereby accepts such assignment.
3.2 This Assignment shall inure to the benefit of and be
binding on the respective legal representatives, successors and
assigns of the Parties.
3.3 Except for representations expressly set forth in the'
Purchase Agreement, this Assignment is made without any
representations or warranties, "express or implied.
4. Miscellaneous.
4.1 Attornevs' Fees. In the event of any litigation or
proceeding (an "action") between the parties hereto for breach of
or to enforce any provision or right hereunder, the unsuccessful
party in such action shall pay to the successful party all costs
and expenses, expressly including but not limited to, reasonable
attorneys' fees incurred by the successful party in connection
with such action. The successful party shall be that party who,
in the light of the issues litigated and the court's decisions on
those issues, was more successful in the action. The party who
was more successful need not be determined to be the party who
recovers a judgment in the action. An action shall include
proceedings in bankruptcy court.
4.2 Successors. This Assignment shall be binding upon and
inure to the benefit of each of the parties hereto and to their
respective successors and assigns.
4.3 Further Action. Assignor and Assignee shall at any
time, or from time to time after the execution of this Assignment
582001:2614.1
2
1/26/01
and whether before or after the Close of Escrow, upon request of
the other, execute and deliver such further documents and do such
further acts and things as such party may reasonably request in
order to fully effect the purpose of this Assignment of Service
Contracts.
4.4 Counterparts. This Assignment may be executed in any
number of counterparts, each of which shall be deemed an
original, and all of which when taken together shall constitute
but one and the same agreement.
4.5 GoverninG Law. This Assignment shall be governed by
and construed in accordance with the laws of the State of
California.
4.6 Modifications. This Assignment may not be altered,
amended, changed, terminated or modified in any respect or
particular, unless the same shall be in writing and signed by the
party to be charged.
4.7 Severability. Wherever possible, each provision of .
this Assignment shall be interpreted in such a manner as to be
valid under applicable law, but if any provision of this
Assignment shall be invalid or prohibited thereunder, such
provision shall be effective to the extent of such prohibition
without invalidating the remainder of such provision or the
remaining provisions of this Assignment which shall remain fully
binding and in full force and effect.
4.8 HeadinGs. The headings of the paragraphs of this
Assignment are inserted solely for convenience of reference and
are not a part of, and are not intended to govern, limit or aid
in the construction of, any term or provision hereof.
4.9 Gender. When necessary herein, all terms used in the
singular shall apply to the plural, and all terms used in the
masculine or feminine genders shall apply to the neuter.
SB2001 :2614.1
3
1/26/01
IN WITNESS WHEREOF, the Parties hereto have executed
this Assignment effective as of the date first above written.
"ASSIGNOR"
MDA-SAN BERNARDINO ASSOCIATES, LLC,
a California limited liability company
By: SK Investors No.1, L.L.C., a
Delaware limited liability company
By: SK Metro Development L.P.,
a California limited partnership
Its Sole Member
By: SK Metro Corp.,
a California corporation
Its General Partner
By:
Rex Swanson, President
"'ASSIGNEE"
REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO, a public body corporate and
politic of the State of California
By:
Name:
Its:
By:
Name:
Its:
582001:2614.1
4
1/26/01
CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
April 4, 2001
TO:
Stephanie Jefferson, Secretary
FROM:
Michelle Taylor, Senior Secretary
RE:
Resolution CDC/2001-8 - CINEPLEX - MDA Purchase and Sale Agreement
On February 5, 2001, the City of San Bernardino adopted Resolution CDC/2001-8 - Resolution
approving and accepting the purchase by Redevelopment Agency of the City of San Bernardino
from MDA -San Bernardino Associates, LLC of the CinemaStar Theater parcel and authorizing
the Executive Director to execute the purchase and sale agreement and joint escrow instructions
on behalf of the Redevelopment Agency.
Our office has not received the executed documents. If the documents have been signed, please
forward them to the City Clerk's Office; otherwise, please advise me of their status.
If you have any questions, please call me at ext. 3206.
CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
May 1,2001
TO:
Stephanie Jefferson, Secretary
FROM:
Michelle Taylor, Senior Secretary
RE:
Resolution CDC/2001-8 - CINEPLEX - MDA Purchase and Sale Agreement
On February 5, 2001, the City of San Bernardino adopted Resolution CDC/200l-8 - Resolution
approving and accepting the purchase by Redevelopment Agency of the City of San Bernardino
from MDA-San Bernardino Associates, LLC of the CinemaStar Theater parcel and authorizing
the Executive Director to execute the purchase and sale agreement and joint escrow instructions
on behalf of the Redevelopment Agency.
A memo was sent to you on April 4, 2001, regarding the status of this agreement; however, our
office has not received the executed documents. If the documents have been signed, please
forward them to the City Clerk's Office, to my attention; otherwise, please advise me of their
status.
If you have any questions, please call me at ext. 3206.
-
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
A--
COcJ?...M 1- g
.
Absent 4+
Meeting Date (Date Adopted): 2-5-0 I
Vote: Ayes 1- Ie Nays
Change to motion to amend original documents:
Item # _IL '2. g
f") Abstain
Resolution #
Reso. # On Attachments: -==-
Contract term: ---
NullNoid After:
Note on Resolution of Attachment stored separately: -=-
Direct City Clerk to (circle I): PUBLISH, POST, RECORD W/COUNTY Date:
See Attached: =
Reso. Log Updated:
Seal Impressed:
/
I\-r,~
Date Sent to-MiryOr: ;). .. <;r -0 \
Date of Mayor's Signature: ,;;( -',j-ol
Date of Clerk/CDC Signature: :J-- is.O \
Date Memo/Letter Sent for Signature: -4 -4,-l:::, \
60 Day Reminder Letter Sent on 30th day: -5 -l- <> \
90 Day Reminder Letter Sent on 45th day:
See Attached:./ Date Returned: 5" ... \ '< -0 ,
See Attached: ,,/
See Attached:
Request for Council Action & Staff Report Attached: Yes /
Updated Prior Resolutions (Other Than Below): Yes
Updated CITY Personnel Folders (6413, 6429, 6433,10584,10585,12634): Yes
Updated CDC Personnel Folders (5557): Yes
Updated Traffic Folders (3985, 8234, 655, 92-389): Yes
No By
No ,/ By
No ~ By
No v By
Nol By
Copies Distributed to:
City Attorney
Parks & Rec.
Code Compliance
Dev. Services
EDA
./
Finance
MIS
Water
Others:
Police Public Services
Notes:
BEFORE FILING. REVIEW FORM TO ENSURE ANY NOTATIONS MADE HERE ARE TRANSFERRED TO THE
YEARLY RESOLUTION CHRONOLOGICAL LOG FOR FUTURE REFERENCE (Contract Term. etc.)
Ready to File: ---illL
Date: 5'" \ k -\:>\