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HomeMy WebLinkAboutContracts & Agreements_7B-1990_CCv0001.pdf GRESHAM, VARNER, SANTAGE, NOLAN & TILDEN ALLEN DAJRESHAM LA-14' OFFICES VICTORVILLE OFFICE BRUCE D.VARNER M11 PARK AVENEL',SPITE 140 PHILIP M.SAVAGE,111 4300 NVOUTH ARROWHEAD AVENCE, SUITE 300 VICTORVILLE,CALIFORNIA 92292 JOHN C.NOLAN SAT 13ER-NARDIN0,CALIFORNIA 02401 TELEPHONE(610)243-2'889 M..WILLIAM TILDEN TFLECOPIER(619)243,3057 JAMES E.GOOD TELEPHONE (714)884-2171 MANN A,OSTOICH TROM&S N.JACOBSOM (714 1 824-0611 STEPRAN Q.SALESON, TELECOPIER(7111)888-2120 ROBERT IV,RITTER,JR. DONALD W.JORDAN ROBIN BVAMLETT COCHRAN (1907-1980) DUKE D.ROU';E -,717138 13.M,CAVLEY ERNEST E.RIFFrNBURQff MICHAEL DUANE DAVIS September 17, 1990 BART W.DRIZZLE RICHARD D.MARCA PATRICK O.MVrCHELL PENELOPE ALEXANDER TARA RE[IlLy WIRTZ JAMES R.BAXTER HAND RE LIVERED Ms. Lorrie Poyzer City Clerk CITY OF REDLANDS 30 Cajon Street Redlands, CA 92373 RE: Wal-Mart Project Dear Ms. Poyzer: At Dan McHugh's request, enclosed are three copies of an Agreement regarding the Declaration of Covenants, Conditions, Restrictions and Reciprocal Easements for the above- referenced project. Dan has told me that you will be in a position to obtain the Mayor's signature on these copies tomorrow morning. (Please note that his signature must be acknowledged in the pres- ence of a Notary Public). Please call me when the signed copies are ready to be picked up. When I have ob- tained the remaining signatures, I will provide Dan a fully signed copy. Thank you for your help. Very truly yours, Mark A. Ostoich of GRESHAM, VARNER, SAVAGE, NOLAN & TILDEN MAO/kas Enclosures cc: Daniel J. McHugh, Esq. (w/encl.-via telecopier) GRESHAM, VARNER, SAVAGE, NOLAN & TILDEN ALLEN B.ORESRAM LAW OFFICES VICTORVILLE OTEICF .DRVCE D.VARNER WOH PARK AVENUE,SVITE W PHILIP M.SAVAOF,111 000 WORTH ARROW-READ AVEN-M,StTITE 300 VICTOIMLLE.CALIPORNIA 02302 JOHN C,BOLANSAN BERNARDINO,CALIFORNIA 02401 TELEPHONE(610)"a-mo X�WILLIAM TILDEN TELXCOPIER(ato) JAMES E.OWD TELEPHONE (714)884-2171 MARK A.OSTOICH THOMAS X.JACOBSON (714)824-0011 STEPHAN O.SALESON TELECOPIER(714)BB-2120 ROBERT W,RITTER.JR. DONALDW.JORDAN ROBIN BRAMIYTT COCHRAN DUKE D,BDVSf, JOHN D McCAULVY ERNEST Z.WIFFENDUROM MICHAEL DUANE DAVIS September 5, 1990 BART W.BRIZZEE RICHARD D.XARCA PATRICK O.MITCHELL PENELOPE ALEXANDER TARA BEILIT WIRTZ JAMES R,BAXTER HA_" DELIVERED Daniel J. McHugh, Esq. c/o City Clerk CITY OF REDLANDS 30 Cajon Street Redlands, CA 92373 RE: Wal-Mart Pr iect Dear Dan: Enclosed are the following: 1. Three copies of First Amendment to Lease Agreement. This document addresses a change in the legal description of the Parking Facility, the substitution of The Pavilion at Redlands, Limited, in place of Gatlin/Berger Develop- ments, Inc., as the Lessor, the clarification of subpara- graph 11.(b) of the Lease regarding the assignability of the Lessor's rights under the Lease and the amendment of paragraph 32. of the Lease regarding approval by resolu- tion. 2. One copy of Memorandum of Lease. 3. Three copies of the so-called Wal-Mart Subordination Agreement. This document subordinates the City Lease to the Wal-Mart Declaration of Covenants, Conditions, Restrictions and Easements and includes a nondisturbance agreement. 4. Three copies of the so-called First National Bank of Commerce Subordination Agreement. This document subordinates the City Lease to security interests that First National Bank of Commerce will take in the subject prop- erty, to secure the acquisition loan. GRESHAM,V,ARNER,SAVAGE.NON AN & TILDEN LAW OMCES Daniel J. McHugh, Esq. September 5, 1990 Page 2 5. Three copies of Assignment, Assumption and Consent Agreement. This document implements the transfer of the development rights of Gatlin/Berger Developments, Inc., including its rights under the City Lease and the Development Agreement, to The Pavilion at Redlands, Limited. 6. Two copies of Estoppel Certificate regarding the City Lease. One of these documents is addressed to The Pavilion at Redlands, Limited and the other document is addressed to First National Bank of Commerce. 7. Two copies of Estoppel Certificate regarding the Devel- opment Agreement. One of these documents is addressed to The Pavilion at Redlands, Limited and the other docu- ment is addressed to First National Bank of Commerce. To the extent possible, dates have been inserted in all of the above documents. The remaining dates, as well as any required recording references, will be inserted at the time of closing. Please sign the documents which require your approval, have the Mayor sign all of these documents on behalf of the City (please note that his signature on the Memorandum of Lease and the Subordination Agreements must be acknowledged in the presence of a Notary Public) and call me when the signed documents are ready to be picked. When I have collected the remaining signatures, I will provide you with signed copies for your file. I will coordinate with you as we close this transaction, so you will have assurances that these documents will not be used until the appropriate time. Thank you very much for your help in completing these documents. I will coordinate with Jeff Shaw regarding the remaining CC&R issues. Very truly yours, Mark A. Ostoich of GRESHAM, VA R, SAVAGE, NOLAN & TILDEN MAO/kas Enclosures RECQRPM REQUM B� AND RUE RECORM] Mark A. Ostoich, Esq. GRESHAM, VARNER, SAVAGE, NOLAN &TILDEN 600 N. Arrowhead Avenue Suite 300 San Bernardino, CA 92401 AGREEMENT THIS AGREEMENT is entered into this day of September, 1990, by and among WAL-MART STORES, INC., (-Wal-Mart-), THE PAVILION AT REDLANDS, LIMITED, a California limited partnership, (the "Pavilion") and the CITY OF REDLANDS, (the "City"). Wal-Mart and The Pavilion are referred to herein collectively as the "Owners". RECITALS A. Wal-Mart is, or will become contemporaneously with this Agreement, the owner of Parcel 4 of Parcel Map _, as recorded in Book of Maps, at pages through _, inclusive, in the records of the County Recorder of San Bernardino County, California (the "Wal-Mart Property"). B. The Pavilion is, or will become contemporaneously with this Agreement, the owner of Parcels I through 3, and Parcels 5 through 9 of Parcel Map _, as recorded in Book of Maps, at pages_through _, inclusive, in the records of the County Recorder of San Bernardino County, California (the "Pavilion Property"). C. The Wal-Mart Property and The Pavilion Property are referred to herein collec- tively as the *Project". The Owners' maintenance responsibilities with respect to the Common Areas of the Project are set forth in Section 5.(b) of the Declaration of Covenants, Conditions, Restrictions and Reciprocal Easements, dated 1 1990, which is recorded against the Project in the City of -, County of I California (the "Declaration"). Capitalized terms used herein shall have the meanings given them in the Dec- laration unless indicated otherwise. D. The City is a general law city in which the Project is located. 1 AG:AGEMT\K E. The Owners and the City now desire to enter into this Agreement concerning the right of the City to enforce the Declaration with respect to maintenance of the Common Area by the Owners and to consent to any termination and certain amendments of the Declara- tion. NOW, THEREFORE, in view of the foregoing, and in consideration of the mutual covenants herein contained, the parties hereby agree as follows: 1. Each of the Owners shall maintain the Common Area on its portion of the Project in accordance with the standards set forth in the Declaration. 2. if, in the opinion of the City Manager of the City (or his authorized rep- resentative), either Owner at any time fails to maintain the Common Area on its portion of the Project in accordance with the terms of the above-referenced Declaration (a "Defaulting Owner"), the City shall give written notice to both Owners, specifying the exact nature of such deficiency. Such written notice of deficiency from the City shall be addressed to both Owners and shall require that the Defaulting Owner take appropriate corrective action within thirty (30) days of receipt of such written notice unless there exists a hazardous condition creating an immediate possibility of serious injury to persons or property, in which case the time for correction may be reduced to a minimum of five (5) days. The Defaulting Owner shall have the right, within ten (10) days of receipt of such written notice of deficiency, to file an appeal before the City Council of the City for a public hearing concerning the reasonableness of the City's requirements as set forth in the written notice of deficiency. The decision of the City Council on such appeal shall be binding upon all parties, but may be appealed by the De- faulting Owner through an appropriate action in any court having jurisdiction. 3. The written notice of deficiency from the City shall state the anticipated costs that the City would assess against the Defaulting Owner for the corrective work to be ac- complished, which costs shall be no more than those charged by competitive private industry for similar work. If the Defaulting Owner, within the time set forth in the notice of deficiency (subject to extension for such time as may be required to appeal the notice of deficiency to the City Council) does not undertake and complete the corrective work required in the notice of deficiency, the City may (but will not be obligated to) undertake and complete such corrective measures as are set forth in the notice and assess the costs thereof against the Defaulting Owner. In the event the City undertakes such corrective measures, the Defaulting Owner hereby grants to the City such rights of access, ingress and egress upon and across the De- faulting Owner's portion of the Project as may be necessary to complete such work. The City 2 may elect to enforce payment of such assessment through the procedures set forth in the Decla- ration for the establishment of liens or through an action at law (which action may be brought without foreclosing or waiving any lien securing such amount). In any such action, the pre- vailing party will be entitled to receive its attorneys' fees and costs, in addition to such other relief as may be granted. 4. Each lot which is subject to the Declaration shall, when developed, contain refuse disposal recepticals which are adequate for the intended use of such lot. S. Wal-Mart and Developer agree that the Declaration shall not be termi- nated without the consent of the City and, further, that the Declaration shall not be amended with respect to the following matters, without the consent of the City: (a) Any amendment that would affect access and maintenance of utility lines within the Project. (b) Any amendment that would affect reciprocal ingress and egress within the Project. (c) Any amendment that would affect reciprocal parking within the Project. (d) Any amendment that would affect access and use of trash enclo- sures within the Project. (e) Any amendment that would affect common maintenance of on- site landscaping within the Project. (f) Any amendment that would afford the owners of the Outparcels the right to approve or to object to any building additions on Tract 1 and/or Tract 2. (g) Any amendment that would affect the right of the owner of Tract 1 to object to any building additions on Tract 2 beyond the limits currently permitted by the Declaration. (h) Any amendment that would afford the owner of Tract 2 the right to approve or object to any building additions on Tract 1, except any such additions outside the Building Area of Tract 1. 3 (i) Any amendment that would affect the right of the owner of Tract 2 to approve or object to any building additions on Tract 1 that extend beyond the Building Area of Tract 1. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. CITY OF REDLANDS, a municipal corpora- tion _; I Xy I is yor WAL-MART WAL-MART STORES, INC., a Delaware cor- poration By: Its PAVILION THE PAVILION AT REDLANDS, LIMITED, a California limited partnership By THE PAVILION AT REDLANDS CORPORATION, a California corporation, general partner By: Its 4 STATE OF CALIFORNIA ) ss. COUNTY OF San Bernardino ) On September 18, 1990, before me, the undersigned, a Notary Public in and for said State, personally appeared Charles G. DeMir ' n , personally known to me or proved to me on the basis of satisfactory evidence to be the Mayor of the City of Red- lands, a municipal corporation, and acknowledged to me that said municipal corporation exe- cuted the within instrument. WITNESS my hand and official seal. OFFICIAL SEAL B SANCHQ Notary Public Notary Public-CalVorrda SAN BERNARDINO COUNTY My Commission ExpUes June 12,1991 STATE OF ARKANSAS ) ss. COUNTY OF ) On 1990, before me, the undersigned, a Notary Public in and for said State, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the of WAL-MART STORES, INC., the corpora- tion that executed the within instrument and acknowledged to me that said corporation exe- cuted the within instrument pursuant to its Bylaws or a resolution of its Board of Directors. WI'T'NESS my hand and official seal. Notary Public 5 STATE OF CALIFORNIA ss. COUNTY OF On 1990, before me, the undersigned, a Notary Public in and for said State, personally appeared , personally known to me or proved to me on the basis of i0isfa—ciory evidence to be iTie- of THE PAVILION AT REDLANDS CORPORATION, a California corporation, personally known to me or proved to me on the basis of satisfactory evidence to be the general partner of THE PAVILION AT REDLANDS, LIMITED, a California limited partnership, and acknowl- edged to me that said corporation executed it as the general partner of THE PAVILION AT REDLANDS, LIMITED, a California limited partnership. WITNESS my hand and official seal. Notary Public 6 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Mark A. Ostoich, Esq. GRESHAMI VARNER, SAVAGE, NOLAN &TILDEN 600 N. Arrowhead Avenue Suite 300 San Bernardino, CA 92401 SUBORDINATION AGREEMENT NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR INTEREST IN THE HEREIN-DESCRIBED PROP- ERTY BECOMING SUBJECT TO AND OF LOWER PRIOR- ITY THAN THE LIEN OF SOME OTHER INSTRUMENT. This Subordination Agreement ("Agreement") is entered into effective September 4, 1990, among the CITY OF REDLANDS, a municipal corporation, ("Redlands"), WAL- MART STORES, INC., a Delaware corporation ("Wal-Mart") and THE PAVILION AT REDLANDS, LIMITED, a California limited partnership ("Pavilion"). RECITALS A. Pavilion is the owner of the following-described real property in San Bernardino County, California ("Pavilion Property"): Parcel 2 and Parcel 3 of Parcel Map_, as recorded in Book of Maps, at Pages through ' inclusive, i -----'—n the Records of the County Recorder o7San Bernardino County, California. B. Wal-Mart is the owner of the following-described real property in San Bernardino County, California ("Wal-Mart Property"): Parcel 4 of Parcel Map_, as recorded in Book E_of Maps, at Pages _ through inclusive, in the Records of the County Recorder of San Bernardino County, California. 1 \ag\SubordAg\k C. The Wal-Mart Property and the Pavilion Property are subject to a Lease Agreement which was entered into between Pavilion's predecessor in interest, GATUN/BERGER DEVELOPMENTS, INC., a Louisiana corporation, as Lessor, and Red- lands, as Lessee ("Lease"). The Lease is evidenced by a Memorandum of Lease, entered into effective September 4, 1990, which was recorded on 1990. as Instrument No. in the Office of the County Recorder of San Bernardino County, California. D. Wal-Mart and Pavilion intend to develop the Wal-Mart Property and the Pavilion Property as a retail shopping center and intend to subject the Wal-Mart Property and the Pavilion Property to a Declaration of Covenants, Conditions, Restrictions and Reciprocal Easements ("Declaration"), which Declaration will be recorded concurrently with this Agree- ment. E. Redlands has agreed, in paragraph 6. of the Lease, that the Lease will be subject and subordinate to Covenants, Conditions, Restrictions and Easements which will facilitate the development and use of the Wal-Mart Property and the Pavilion Property and Wal-Mart and Pavilion have asked Redlands to enter into this Agreement in order to implement the subordi- nation which is contemplated by paragraph 6. of the Lease. In consideration of the mutual covenants and conditions which are provided in this Agreeent, the parties agree as follows: OPERATIVE PROVISIONS 1. Incorporation by Reference. The Recitals in this Agreement are material and are incorporated by reference as though fully set forth hereat. 2. Subordination. The parties hereby declare that Redlands' rights pursuant to the Lease are subordinate to and have a lesser legal priority than Pavilion's and Wal-Mart's rights pursuant to the Declaration and that the Lease is in all respects a lease which is subordinate and inferior to the Declaration. 3. Non-Disturbance Agreement. Notwithstanding the subordination which is the subject of this Agreement, Wal-Mart agrees that it and any person who may obtain an interest in the Wal-Mart Property by or through it, shall not disturb Redlands' quiet possession under 2 the Lease as long as Redlands is not in default under the Lease and is not in breach under the Declaration. 4. Effective Date. The subordination which is the subject of this Agreement shall — automatically become effective as of the date of recordation of the Declaration. 5. Inurenign . This Agreement shall inure to the benefit of and shall bind the re- spective successors and assigns of the parties. 6. AUorngys' Fees. If any legal action becomes necessary to enforce or interpret any provision of this Agreement, then the prevailing party in such legal action shall be entitled to recover from the losing party any and all attorneys' fees and costs which are expended by the prevailing party in connection with such legal action. 7. Authority to Execute. Each signatory to this Agreement represents and warrants that it is duly authorized to execute this Agreement on behalf of the party which shall be bound by such execution. NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR INTEREST IN THE HEREIN-DESCRIBED PROP- ERTY BECOMING SUBJECT TO AND OF LOWER PRIOR- ITY THAN THE LIEN OF SOME OTHER INSTRUMENT. ATTEST: REDLANDS By CITY OF RED1,AN7Sa municipal corpora- CFCrk r4j? tion B PAVILION THE PAVILION AT REDLANDS, LIMITED, a California limited partnership By THE PAVILION AT REDLANDS CORPORATION, a California corporation, general partner By: Its 3 WAL-MART WAL-MART STORES, INC., a Delaware cor- poration By: Its STATE OF CALIFORNIA ) ss. COUNTY OF San Bernardino ) On t =ter her 49 1990, before me, the undersigned, a Notary Public in and for said State, personally appeared les G. DeMir ' n , personally known to me or proved to me on the basis of satisfactory evidence to be the Mayor of the City of Red- lands, a municipal corporation, and acknowledged to me that said municipal corporation executed the within instrument. WITNESS my hand and official seal. OFFOu.SIS B. SANCHEZ Notary Public Notary Pubic-C alitomla SAN BERNARDiNO COUNTY My Cortin.EV.Jinx 12.1991 STATE OF ARKANSAS ) ss. COUNTY OF ) On , 1990, before me, the undersigned, a Notary Public in and for said State, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the of WAL-MART STORES, INC., the corpora- tion that executed the within instrume—nt--a—niFacknowledged to me that said corporation exe- cuted the within instrument pursuant to its Bylaws or a resolution of its Board of Directors. WITNESS my hand and official seal. Notary Public 4 STATE OF CALIFORNIA � ss. COUNTY OF On �, 1990, before me, the undersigned, a Notary Public in and for said State, personally appeared , personally known to me or proved to me on the basis-o- sags actory evidence to be the of THE PAVILION AT REDLANDS CORPORATION, a California corporation, personally known to me or proved to me on the basis of satisfactory evidence to be the general partner of THE PAVILION AT REDLANDS, LIMITED, a California limited partnership, and acknowledged to me that said corporation executed it as the general partner of THE PAVILION AT REDLANDS, LIMITED, a California limited partnership. WITNESS my hand and official seal. Notary Pubic 5 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Mark A. Ostoich, Esq. GRESHAM, VARNER, SAVAGE, NOLAN &TILDEN 600 N. Arrowhead Avenue Suite 300 San Bernardino, CA 92401 SUBORDINATION AGREEMENT NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR INTEREST IN THE HEREIN-DESCRIBED PROP- ERTY BECOMING SUBJECT TO AND OF LOWER PRIOR- ITY THAN THE LIEN OF SOME OTHER OR SECURITY INSTRUMENT. This Subordination Agreement ("Agreement") is entered into effective September 4, 1990, among the CITY OF REDLANDS, a municipal corporation, ("Redlands"), THE PAVILION AT REDLANDS, LIMITED, a California limited partnership ("Pavilion") and FIRST NATIONAL BANK OF COMMERCE, National Association ("FNBC"). RECITALS A. Pavilion is the owner of the following-described real property in San Bernardino County, California ("Pavilion Property"): Parcel 1, Parcel 2, Parcel 3, Parcel 5, Parcel 6, Parcel 7, Parcel 8 and Parcel 9 of Parcel Map_, as recorded in Book of Maps, at Pages through -_ , inclusive', in the Records of the County Recorder oT San Bernardino County, California. B. The Pavilion Property is subject to a Lease Agreement which was entered into between Pavilion's predecessor in interest, GATLIN/BERGER DEVELOPMENTS, INC., a Louisiana corporation, as Lessor, and Redlands, as Lessee ("Lease"). The Lease is evidenced by a Memorandum of Lease entered into effective September 4, 1990, which was recorded on \ag\Subord2\k 1990. as instrument No. in the Office of the County Recorder of San Bernardino County, California. C. Pavilion has executed or is about to execute a Note ("Note") in the principal amount of $ , dated —, 1990, and a Deed of Trust ("Deed of Trust") in favor of FNBC. The Note shall be payable with interest and otherwise on the terms and conditions which are described in the Note and the Deed of Trust, and shall be recorded contemporaneously with this Agreement. D. As a condition precedent to obtaining the loan which is the subject of the Note and Deed of Trust ("Loan"), FNBC is requiring that the Deed of Trust shall unconditionally be and remain at all times a lien or charge on the Pavilion Property, which is prior and superior to the lien or charge of the Lease. E. FNBC is willing to make the Loan provided that Redlands shall specifically and unconditionally subordinate the lien or charge of the Lease to the lien or charge of the Deed of Trust. F. It is to the mutual benefit of Redlands, Pavilion and FNBC that FNBC make the Loan and Redlands is willing that the Deed of Trust shall, when recorded, be a lien or charge on the Pavilion Property which is unconditionally prior and superior to the lien or charge of the Lease, and Redlands, Pavilion and FNBC acknowledge that FNBC would not make the Loan without this Agreement. In consideration of the mutual covenants and conditions which are provided in this Agreeent, the parties agree as follows: QPERATIVE PROVISIONS 1. lnorpMfign by Reference. The Recitals in this Agreement are material and are incorporated by reference as though fully set forth hereat. 2. Subordination. The parties hereby declare that the Deed of Trust, and any re- newals or extensions of the Deed of Trust, shall unconditionally be and remain at all times a 2 lien or charge on the Pavilion Property, which is prior and superior to the lien or charge of the Lease. I Additional Agreements and Acknowledgments. Redlands hereby agrees and acknowledges as follows: (a) It consents to and approves the provisions of the Note and Deed of Trust (including all agreements including, without limitation, any loan or escrow agreements) be- tween Pavilion and FNBC, for the disbursement of the proceeds of the Loan to Pavilion. (b) In making disbursements pursuant to any agreement which is referred to in subparagraph 1(a), FNBC is under no obligation to, nor has FNBC represented that it shall, see to the application of such proceeds by the person or persons to whom it disburses such proceeds, and any application or use of such proceeds for purposes other than those which are provided for in such agreements, shall not defeat the subordination which is the subject of this Agreement, in whole or in part. (c) Redlands intentionally and unconditionally waives, relinquishes and subordinates the lien or charge of the Lease, in favor of the lien or charge of the Deed of Trust and understands that, in reliance on and in consideration of such waiver, relinquishment and subordination, specific loans and advances are being and shall be made and specific monetary and other obligations are being and shall be entered into, which would not be made or entered into but for FNBC's reliance on Redlands' waiver, relinquishment and subordination. (d) An endorsement shall be placed on the Lease to the effect that that Lease has, by this Agreement, been subordinated to the lien or charge of the Deed of Trust. 4. Non-Disturbance Agreement. Notwithstanding the subordination which is the subject of this Agreement, FNBC agrees that it and any person who may obtain an interest in the Pavilion Property by or through it including, without limitation, by foreclosure of the Deed of Trust, shall be bound by the Lease and shall not disturb Redlands' quiet possession under the Lease. 5. Sole and Only Agreement. Except for paragraph 8. of the Lease which pro- vides for the subordination of the lien or charge of the Tease to security interests which are to be thereafter executed, this Agreement is the whole and only agreement among the parties with 3 respect to the subordination of the lien or charge of the Lease to the lien or charge of the Deed of Trust. 6. Inu=e pt. This Agreement shall inure to the benefit of and shall bind the re- s tive espective successors and assigns of the parties. 7. Attorneys' EM. In the event that any legal action becomes necessary to en- force or interpret any provision of this Agreement, then the prevailing party in such legal ac- tion shall be entitled to recover from the losing party any and all attorneys' fees and costs which are expended by the prevailing party in connection with such legal action. 8. AuLhodly to _E_xg=t . Each signatory to this Agreement represents and warrants that it is duly authorized to execute this Agreement on behalf of the party which shall be bound by such execution. NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR INTEREST IN THE HEREIN-DESCRIBED PROP- ERTY BECOMING SUBJECT TO AND OF LOWER PRIOR- ITY THAN THE LIEN OF SOME OTHER OR LATER SECU- RITY INSTRUMENT. ATTEST: REDLANDS CITY OF REDLANDS, a municipal corpora- `*Crr tion 'IYC is r PAVILION THE PAVILION AT REDLANDS, LIMITED, a California limited partnership By THE PAVILION AT REDLANDS CORPORATION, a California corporation, general partner By: Its 4 ENBC FIRST NATIONAL BANK OF COMMERCE, National Association By: Its STATE OF CALIFORNIA ss. COUNTY OF San Bernardino On SepteWba 4_, 1990, before me, the undersigned, a Notary Public in and for said State, personally appeared Charles G , personally known to me or proved to me on the basis of Etisfactory evidence to-be the—Mayor of the CITY OF REDLANDS, a municipal corporation, and acknowledged to me that said municipal corpora- tion executed the within instrument. WITNESS my hand and official seal. OFFOAL SM B.SANCHEZ NotaryPubk-�Ilfomla Notary Public SAN SERKAMNO OOUNTY My Comm EXP.AM 12,1991 STATE OF CALIFORNIA ss. COUNTY OF On , 1990, before me, the undersigned, a Notary Public in and for said State, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the of THE PAVILION AT REDLANDS CORPORATION, a California'corporation, personally known to me or proved to me on the basis of satisfactory evidence to be the general partner of THE PAVILION AT REDLANDS, LIMITED, a California limited partnership, and acknowl- edged to me that said corporation executed it as the general partner of THE PAVILION AT REDLANDS, LIMITED, a California limited partnership. WITNESS my hand and official seal. Notary Public 5 STATE OF LOUISIANA ss. COUNTY OF On 1990, before me, the undersigned, a Notary Public in and for said State, person appeared personally known to me or proved to me on the bases of sails factory evidence to the person who executed the within instrument as the of FIRST NATIONAL BANK OF COM- MERCE, National Association, the corporation that executed the within instrument and ac- knowledged to me that said corporation executed the within instrument pursuant to its Bylaws or a resolution of its Board of Directors. WITNESS my hand and official seal. Notary Public 6 RECORDING RESUESTED BY AND VVIIEN RECORD MAIL TO: Mark A. Ostoich, Esq. GRESHAM, VARNER, SAVAGE, NOLAN&TILDEN 600 N. Arrowhead Avenue Suite 300 San Bernardino, CA 92401 MEMORANDUM OF LEASE This Memorandum of Lease is entered into effective September 4, 1990, between THE PAVILION AT REDLANDS, LIMITED, a California limited partnership, ("Lessor") and the CITY OF REDLANDS, a municipal corporation, ("Lessee"). Lessor, as successor to GATLIN/BERGER DEVELOPMENTS, INC., a Louisiana corporation, has leased to Lessee, for a term of 10 years, commencing on the date that a Wal- Mart department store opens for business on the herein-described property, on the terms and conditions provided in that certain Lease Agreement which was entered into effective March 20, 1990, all of those certain premises in San Bernardino County, California, which are described as follows: That portion of Parcels 1 and 2 of Parcel Map 6611 as per Map recorded in Book 81, Pages 79 and 80 of Parcel Maps in the City of Redlands, County of San Bernardino, State of California, more particularly described as follows: Beginning at the Northeast comer of Parcel 2, thence Southerl along the Easterly line of Parcel 2 a bearing of South 0" 241 4�- East, 396.00 feet; thence 32.00 feet measured at right angles to the true point of beginning. Thence from said true point of beginning, parallel to the Easterly line of Parcel 2 a bearing of South 0' 24' 42" East, 317.66 feet; thence South 89' 34' 16" West, 272.06 feet; thence South 0* 25' 44" East, 206.77 feet to a point on the Southerly line of said Par- cel 2; thence along said Southerly line North 89' 41' 29" West, 163.02 feet; thence North 0* 25' 44" West, 204.67 feet; thence South 89* 34' 16" West, 570.91 feet; thence North 0' 25' 44" West 398.16 feet; thence South 89* 34' 16" West 217.72 feet; thence parallel to the Westerly line of Parcel I North 00 23' 48" West, 53.50 feet, thence North 890 34" 16" East. 451.53 feet; thence South 45' 25' 44" East. 223.45 feet; thence 89* 34' 16" East, 293.62 feet; thence North 710 22' 24" East, 76.85 feet; thence North 89' 34' 16" East, 247.59 feet to the true point of beginning. 2. The terms and conditions of such Lease Agreement are incorporated by refer- ence as though fully set forth hereat. LESSOR APPROVED AS TO FORM AND THE PAVILION AT REDLANDS, SUBSTANCE: LIMITED, a California limited partnership GRESHAM, VARNER, SAVAGE, By THE PAVILION AT REDLANDS NOLAN &TILDEN CORPORATION, a California By: corporation, general partner Mark A. Ostoich, Esq. By: Its LUS ATTEST: CITY OF REDLANDS, a municipal By ITTC�rk corporation C Its A APPROVED AS TO FORM AND SUBSTANCE: BEST, BEST & KRIEGER By: 1�A'�k = Daniel J. Mc h, Esq. 2 STATE OF CALIFORNIA ) } ss. COUNTY OF ) On 1990, before me, the undersigned, a Notary Public in and for said State, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the of THE PAVILION AT REDLANDS CORPORATION, a California corporation, personally known to me or proved to me on the basis of satisfactory evidence to be the general partner of THE PAVILION AT REDLANDS, LIMITED, a California limited partnership, and acknowledged to me that said corporation executed it as the general partner of THE PAVILION AT REDLANDS, LIMITED, a California limited partnership. WITNESS my hand and official seal. Notary Public STATE OF CALIFORNIA ) ) ss. COUNTY OF San Bernardino ) On September 4 , 1990, before me, the undersigned, a Notary Public in and for said State, personally appeared Charles G. DeMir ' n , personally known to me or proved to me on the basis of satisfactory evidence to be the Mayor of the City of Red- lands, a municipal corporation, and acknowledged to me that said municipal corporation executed the within instrument. WITNESS my hand and official seal. OFFOAL SEALNo Public B. SANCHEz �' N tary Pubf o-Callfomla SAN BERNARDWO COUNTY Ay Carrs.Earp.Amt 1Z 1991 3 \ag\MOL\k ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT THIS ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT (referred to as "Agreement") is entered into this 4th day of September , 1990, by and among GATLIN/BERGER DEVELOPMENTS, INC. , a Louisiana corporation (referred to as "Assignor") , THE PAVILION AT REDLANDS, LIMITED, a California Limited Partnership (referred to as "Assignee") , and the CITY OF REDLANDS, a municipal corporation (referred to as "City") . RECITALS A. Assignor, as Lessor, and City, as Lessee, are the sole parties to a written Lease Agreement dated effective March 20, 1990 (referred to as the "Lease") . B. Pursuant to the terms of the Lease, Assignor and the City have agreed that Assignor shall acquire and develop an approximately 9. 1 acre parking facility in a shopping center which Assignee intends to develop on approximately 26.81 acres of real property at the northeast corner of California Street and Redlands Boulevard, within City's municipal limits (referred to as the "Site") . C. Assignor and City are to be the sole parties to a written Development Agreement dated effective September 14, 1990 (referred to as the "Development Agreement") . D. Assignee has been organized for purposes of acquiring title to the Site, accepting an assignment of Assignor's rights and a delegation of Assignor's obligations under the Lease, the Development Agreement and under other agreements, permits and approvals that Assignor has entered into or acquired with respect to the intended development of the Site. By this Agreement, Assignor, Assignee and City wish to provide for the assignment by Assignor to Assignee of Assignor's rights under the Lease and Development Agreement. NOW THEREFORE, the parties agree as follows: 1. Assignor hereby assigns to Assignee all of Assignor's rights under the Lease and Development Agreement and hereby delegates to Assignee all of Assignor's obligations under the Lease and Development Agreement. 2. Assignee hereby accepts all of Assignor's rights under the Lease and Development Agreement and hereby assumes all of Assignor's obligations under the Lease and. Development Agreement; 1 and Assignee hereby agrees to discharge Assignor's obligations under the Lease and Development Agreement and to hold Assignor free and harmless from any claim, damages, liability, cost or expense relating to or arising out of the Lease and Development Agreement. EXECUTED as of the date first written above. GATLIN/BERGER DEVELOPMENTS, INC. , a Louisiana corporation By: By: THE PAVILION AT REDLANDS, LIMITED, a California limited partnership By THE PAVILION AT REDLANDS CORPORATION, a California corporation, general partner By Its 2 CONSENT City hereby consents to the foregoing assignment, delegation and assumption and hereby releases Assignor from and against any claim, damages, liability, cost or expense relating to or arising out of the Lease and Development Agreement; and agrees that its sole recourse shall be to proceed against Assignee with respect to the same. CITY OF REDLANDS, a municipal corporation Its /14a ATTEST: Sec ary 3 09-05-90/cg/exh FIRST AMENDMENT TO LEASE AGREEMENT This First Amendment to Lease Agreement ("First Amendment") is entered into effective September 4, 1990, among GATLIN/BERGER DEVELOPMENTS, INC., a Louisiana corporation ("Gatlin/Berger"), THE PAVILION AT REDLANDS, LIMITED, a California limited partnership, ("Pavilion") and the CITY OF REDLANDS, a municipal corporation ("Lessee"). RECITALS A. Effective March 20, 1990, Gatlin/Berger and Lessee entered into a Lease Agreement ("Lease") whereby Gatlin/Berger agreed to develop and lease to Lessee a parking facility ("Parking Facility") in a retail shopping center ("Shopping Center") that will be developed on Parcels 1 and 2 of Parcel Map 6611, in the City of Redlands, County of San Bernardino, as per plat recorded in Book 81 of Parcel Maps, Pages 79 and 80, Records of the County of San Bernardino ("Property"). B. Since that time, Gatlin/Berger has assigned its rights and delegated its obligations under the Lease, to Pavilion. The principals of Gatlin/Berger own interests in and control Pavilion. C. Gatlin/Berger, Pavilion and Lessee have determined that the configuration of the Parking Facility, as defined in the Lease, will interfere with the orderly development of the Shopping Center, in that it will conflict with other intended improvements at the Property, and have agreed to modify the configuration of the Parking Facility as provided in this First Amendment. D. Gatlin/Berger, Pavilion and Lessee have also determined that paragraph 32. of the Lease, which provides for approval by resolution, is in error, in that the Lease was approved by simple action of the City Council of Lessee. NOW, THEREFORE, the parties agree as follows: 1. Parking Fadfily. All references in the Lease to the Parking Facility are hereby deemed to be references to the Parking Facility as described and depicted in EXHIBIT 1, which is attached hereto and incorporated by reference as though fully set forth hereat. 1 \ag\1-SEAMD21k 2. Substitution of Lessor. Pavilion is hereby substituted in Gatlin/Berger's place under the Lem and, from and after the date of this First Amendment, Pavilion shall be deemed to be the Lessor under the Lease for all purposes. 3. Assignment of Lessor's Interest. Subparagraph ll.(b) of the Lease is hereby deleted in its entirety and the following is hereby substituted in its place: "(b) Lessor may assign its interest in this Lease or in the Property to any person or entity which owns or operates the Shopping Center. In addition, Lessor may separately assign its rights pursuant to this Lease including, without limitation, its right to receive revenue, to any person or entity whatso- ever, irrespective of whether such assignment is absolute or for security purposes only and irre- spective of whether the assignee owns or operates the Shopping Center." 4. Approval of Lease. Paragraph 32. of the Lease is hereby deleted in its entirety and the following is hereby substituted in its place: "32. Effect on Lessee. This Lease will not be binding on or enforceable against Lessee until such time as it has been approved by official action of Lessee's City Council." 5. Continued Effect of Lease. Except as amended by this First Amend- ment, all of the provisions of the Lease will continue in full force and effect. GAD,IN/BERGER GATLIN/BERGER DEVELOPMENTS, INC., a Louisiana corporation By: Its 2 PAVILION THE PAVILION AT REDLANDS, LIMITED, a California limited partnership By THE PAVILION AT REDLANDS CORPORATION, a California corporation, general partner By: Its APPROVED AS TO FORM AND SUBSTANCE: GRESHAM, VARNER, SAVAGE, NOLAN &TILDEN By: Mark A. Ostoich, Esq. LESSEE CITY OF REDLANDS, a municipal corporation - f. i By: tai{ f ATTEST: APPROVED AS TO FORM AND SUBSTANCE: BEST, BEST & KRIEGER By: t mel J. M Esdj 3 DESCRIPTION AND DEPICTION OF PARKING FACILITY EXHIBIT "1" t THU PMTZOK OF P1Uit."F;LS 1 AM 2 OF Pte, MAP 6611 AS PE{t NIA►P p r rm fflN 80C�C MM ■w881, Ply.y�{.-��yy7�9��yy��y����3�y�)80 C F PARCEL y��i yyIIIpy��y�yTHE ;�CL�T�YC "y�y/R�'E��rXA�ANDS,j y�M�y ��1y�SAN iii�i�Tii1f1�1IM, S n CP GVMU i'! A, i- FE FAR iMM �{j DE9CRIB SFIC 3+Ir AT THE "MMO 'T CMM CF P RCM 2, 'IEM1t,.E SC MOU AlOr. TES RIIinmLY LINE CF' PARCEL 2 A 8EW= Cr SWM 0' 24' 42" osr, 196.00 PUFF; TE ENC E 32.00 FEMr MEASLFM AT RICHT ANGLES 10 THE TRUE Pond CIF BsGno=. THENCE FSM SAM mm Pmwr cr EIIIMS+i M, PARAIZM TO in E&SMRt'.Y LDM . CP PARCEL 2 A HEMM CP 9C3= 0' 24' 42" EM, 317.66 FEET; THENCE SO= 83; 4' 16" NW, 272.06 FEET; THMM SO= 0* 25' 44" EAST, 206.77 FEW TO A POINT OR TO SCXMW LUM OF SAM PARCEL 2; THENCE ALCM SAM SMMMFLY LM NCE M 89'- 41' 29" WF3T, 163.02; THEN= WFaH 0' 25' 44" WEST, 204.67 FW; TIS SOtTiEx 89' 34' 16" Wim, 570.91 rm; Tm= 283 m 0' 23' 44" WEST 398.16 FLM; TfIEINLE SO= 89'' 34' 16" MW 217.72 FRIM THENCE PARALLEL TO 722 W 9TEU LUM OF PM SZ. 1 M" Of 0' 23' 48" NOT, 33.50 FEET, THMNC.'Z NCE M 89' 34' 16" EAST, 431.53 FW; 'SCE SWM 45' 25' 44" FJI►9.I', 223.43 FEET; THENCE 89' 34' 16" SM, 293.62 FEET; TET m mmm 71' 22' 24" EM, 76.85 FEET; 'BEIM N"ll"Ili 89' 34' 16# MW,, 247.59 FRET TO M MZ POINT' Cr EC�tNEt:Q�G. r EXHIBIT ".1t i a e SEABOARD ENGINEERING COMPANY . 4c 4 2/7.aI s 7Zf �� �4r�. sy 74 4 V 272. 52 !77` 34P/6 or t►: "o / r? Awe 41 ZI? vv WZt EXHIBIT al` ESTOPPEL CERTIFICATE TO: THE PAVILION AT REDLANDS, LIMITED c/o Mark A. Ostoich, Esq. 600 N. Arrowhead Avenue Suite 300 San Bernardino, CA 92401 This is to certify that: 1. Effective September 14, 1990, the undersigned entered into a De- velopment Agreement ("Development Agreement") with GATLIN/BERGER DEVELOP- MENTS, INC. (*GATLIN/BERGER"), with respect to Parcels 1 and 2 of Parcel Map 6611, in the City of Redlands, County of San Bernardino, as per plat recorded in Book 81 of Parcel Maps, Pages 79 and 80, Records of the County of San Bernardino. 2. As of the date of this Certificate, the undersigned is aware of no defaults under the Development Agreement. DATED: September 4, 1990 CITY OF REDLANDS, a municipal corpora- tion Bv, Its ATTEST: �ity�IerV�_ agXEstopC2:0905901k ESTOPPEL CERTIFICATE TO: FIRST NATIONAL BANK OF COMMERCE c/o Henry F. O'Connor, Jr., Esq. STEED & O'CONNOR 201 St. Charles Suite 3201 New Orleans, LA 70130 This is to certify that: 1. Effective September 14, 1990, the undersigned entered into a De- velopment Agreement ("Development Agreement") with GATLIN/BERGER DEVELOP- MENTS, INC. (-GATLIN/BERGER"), with respect to Parcels 1 and 2 of Parcel Map 6611, in the City of Redlands, County of San Bernardino, as per plat recorded in Book 81 of Parcel Maps, Pages 79 and 80, Records of the County of San Bernardino. 2. As of the date of this Certificate, the undersigned is aware of no defaults under the Development Agreement. DATED: September 4, 1990 CITY OF REDLANDS, a municipal corpora- ; "y' tion Its KA y Qj� ATTEST: B . I -) *irtCleirk ag\EstonC2:ver2:0905901k