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HomeMy WebLinkAboutMINUTES - 10141997 - C55 TO: BOARD OF SUPERVISORS CQ11tf �:. FROM: Barton J. Gilbert, Director of General Services ' COSI COU y DATE: October 14, 1997 SUBJECT: SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE AGREEMENT SPECIFIC REQUESTS OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION 1. RECOMMENDATION APPROVE a Subordination, Attornment and Non-Disturbance Agreement with Development Enterprises, Inc. for the County's leases for the premises at 2450 Stanwell Drive, Suites 200, 210, 220 and 270, Concord, occupied by the Health Services Department, and AUTHORIZE the Chair of the Board of Supervisors to EXECUTE said Agreement on behalf of the County. II. FINANCIAL IMPACT No financial impact. III. REASONS FOR RECOMMENDATION/BACKGROUND This agreement protects the County's interest in the property at 2450 Stanwell Drive, Suites 200, 210, 220 and 270, Concord. ("ONA TACHMFNT YES SIGNATURE RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S) ACTION OF BOARD ON�L �.e .a r Ik��q 7 / APPROVED AS RECOMMENDED OTHER VOTE F SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE UNANIMOUS(ABSENT ) AND CORRECT COPY OF AN ACTION TAKEN AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN. (� CC: ATTESTED C T I l 2 PHIL BATCHELOR,CLERK OF THE B �dD OF SUPERVISORS AND COUNTY ADMINISTRATOR M382 (10/88) BY DEPUTY - S RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Southern Pacific Bank 12300 Wilshire Boulevard Los Angeles,California 90025 Attention: LOAN SERVICING Loan No.: SF00026 THIS AGREEMENT MAY BE EXECUTED IN TWO OR MORE COUNTER PARTS EACH OF WHICH SHALL BE DEEMED AN ORIGINAL AND ALL OF WHICH TAKEN TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT. SUBORDINATION ATTORNMENT AND NON-DISTURBANCE AGREEMENT This Subordination, Attornment and Non-Disturbance Agreement ("Agreement") is made as of December 8, 1997 by and among Development Enterprises, Inc. ("Lessor") whose address is 8633 Auburn_ Folsom Rd, Granite Bayind CONTRA COSTA COUNTY ("Lessee"), whose address is 2450 Stanwell Avenue, Suites 200.210,220Concord, CA 94520, and Southern Pacific Bank ("Beneficiary".) whose address 12300 Wilshire Boulevard,Los Angeles,California 90025. A. The Property. The term "Property", as used herein, shall mean the real property situated in the County of Contra Costa, State of California, legally described in Exhibit A attached hereto and by this reference made a part hereof, together with all buildings, structures, improvements and fixtures now or hereafter located thereon,and together with all easements and other rights appurtenant thereto. B. The Loan; Security Documents;Deed of Trust. Lessor has borrowed certain sums from the Beneficiary as evidenced by a promissory note dated December 8, 1997, in the original principal amount of$1,165,000.00 (the "Note") and has heretofore encumbered the Property as security for the payment of the Note and its obligations to Beneficiary and, for such purpose, has entered into various instruments and documents (collectively,the "Security Documents"), including, without limitation, a Deed of Trust,Assignment of Rents and Leases and Security Agreement of even date with the Note(the"Deed of Trust")from Lessor for the use and benefit of the Beneficiary,which Deed of Trust has been recorded in the official records of the county where the Property is located. C. The Lease. Pursuant to the terms and provisions of a lease dated as of June 24, 1997, between Lessor and Lessee (the "Lease"), a portion of the Property has been leased to Lessee,which Lease is subordinate to the terms and provisions of the Security Documents. D. Purposes. In connection with the above-mentioned transactions, Lessor and Lessee have agreed to offer certain assurances and representations to the Beneficiary, and all parties agree to provide for (i) confirmation of the subordination of the Lease to the Security Documents; (ii) the continuation of the Lease notwithstanding any foreclosure of the liens created by the Deed of Trust subject to certain conditions; and(iii)Lessee's attornment to the Beneficiary or to such other parties as may acquire title to the Property as the result of any foreclosure, any conveyance of the Property in lieu of foreclosure, or otherwise 1 SU BAGMT2 AGREEMENT NOW, THEREFORE, in consideration of the mutual terms and provisions hereinafter contained and other good and valuable consideration received by each party from the other,the receipt and sufficiency of which are hereby acknowledged,the parties agree as follows: 1. Notices of Default to Beneficiary. Notwithstanding anything to the contrary in the Lease, Lessee shall personally deliver to Beneficiary or mail to Beneficiary (by certified mail, return receipt requested),at Beneficiary's address set forth above,written notice of any default under the Lease by Lessor, and if within the time provided in the Lease for curing thereof by Lessor,Beneficiary performs or causes to be performed all such obligations with respect to which Lessor is in default which can be cured by the payment of money, any right of Lessee to terminate the Lease by reason of such default shall cease and be null and void; provided, however, Beneficiary shall not be obligated to cure any such default under the Lease. 2. Subordination of Lease to Security Documents. Lessee hereby confirms that its leasehold estate in the Property and all of Lessee's rights under the Lease are subordinate to the Security Documents and to all extensions, renewals, modifications, consolidations and replacements thereof, to the full extent of all obligations secured or to be secured thereby including interest thereon and any future advances thereunder. 3. Non-Disturbance of Lessee. Beneficiary agrees that, for so long as Lessee shall perform and satisfy all obligations of Lessee under the Lease in accordance with its terms, neither the Lease nor Lessee's rights pursuant thereto shall be disturbed or affected by any foreclosure of the liens created by the Deed of Trust or conveyance in lieu of foreclosure. Beneficiary's obligations under this Paragraph 3 shall be null and void if Lessee shall, at any time, default in the timely performance of the Lessee's obligations under the Lease or this Agreement and not cure such default within the time, if any,allowed in the Lease. 4. Beneficiary as Lessor after Foreclosure. In the event that Beneficiary(or any other party) shall acquire title to the Property or shall succeed to Lessor's interest in the Lease, whether through foreclosure of the liens created by the Deed of Trust, conveyance in lieu of foreclosure, or otherwise, Beneficiary (or such other party) shall thereupon, and without the necessity of attornment or other act or agreement, be substituted as Lessee's landlord under the Lease, and shall be entitled to the rights and benefits and subject to the obligations thereof; provided that neither Beneficiary nor any other party shall be: (a) liable for any act or omission of any prior landlord under the Lease (including Lessor) and all liability of,Beneficiary (or such other party) for damages for breach of any covenant, duty or obligation of landlord under the Lease shall be satisfied only out of the interest of Beneficiary(or such other party)in the Property;or (b) subject to any offsets or defenses which Lessee might have against any prior landlord (including Lessor);or (c) bound by Lessee's payment of any rent or additional rent that Lessee may have paid to any prior landlord under the Lease (including Lessor) for a period in excess of one month or bound by Lessee's payment of any rent other than in strict accordance with the Lease;or (d) bound by any amendment, modification, extension, supplement, or assignment of the Lease made without Beneficiary's prior written consent;or (e) bound by any agreement for abatement of rent or bound for"free rent,"unless the same 2 SUBAGMT2 is specifically provided in the Lease;or (f) liable to Lessee or any other party for any conflict between the provisions of the Lease and the provisions of any other lease affecting the Property, including, but not limited to,any provisions relating to renewal options and options to expand,and in the event of such a conflict, Lessee shall have no right to take remedial action against Beneficiary or against any other party succeeding to Lessor. Nothing in this.subparagraph (f) shall preclude Lessee from asserting any right under the Lease that it may have against Lessor;or (g) liable to Lessee or any other party with respect to any warranties or representations of any nature whatsoever, either express or implied,made to Lessee by Lessor, any agent or employee of Lessor or any other party, whether pursuant to the Lease or otherwise, including, without limitation, any warranties or representations respecting use, compliance with zoning, Lessor's title, Lessor's authority, habitability, fitness for purpose or possession;or (h) liable for any tenant improvement or construction requirements (including, without limitation, any allowances for tenant improvements or construction) of any prior landlord under the Lease (including Lessor) which may have been or may, in the future,be payable by such landlord(including Lessor)under the Lease; and Lessee hereby agrees to attorn to and recognize such Beneficiary (or such other party) as Lessor. 5. Payment of Rent Upon Default. Lessee has been advised that the Security Documents give Beneficiary the right to collect rent and other sums payable under the Lease:directly from Lessee upon the occurrence of a default thereunder,and Lessee agrees that upon the receipt from Beneficiary of notice of any such default, Lessee will thereafter pay all rent and other sums payable under the Lease directly to Beneficiary(or as Beneficiary shall direct)as they become due and payable. 6. Binding Effect. The provisions of this Agreement shall be covenants running with the Property, and shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, representatives, successors and assigns. This Agreement satisfies any condition or requirement in the Lease relating to the granting of a non-disturbance agreement. 7. No Waiver. Lessor, as landlord under the Lease and grantor or trustor under the Deed of Trust, acknowledges and agrees for itself and its successors and assigns that this Agreement does not constitute a waiver by Beneficiary of any of its rights under the Deed of Trust or any other Security Documents, or in any way release Lessor from its obligations to comply with the terms, provisions, conditions, covenants, agreements, or clauses of the Deed of Trust or any other such Security Document or confer any rights or benefits upon Lessor. Lessor and Lessee agree that, in the event of any conflict between the Lease and this Agreement, the terms and provisions of this Agreement shall govern and control. Nothing contained in this Agreement shall be construed to derogate from or in any way impair or affect the lien or provisions of the Deed of Trust. 3 SUBAGMT2 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first above written. LESSOR: F.:r .0 By:_ - By:_ Name: Name: Title: Title: By:_ ' Name: Title: LESSEE: czis e7 By: By:_ Name: Mark DeSaulnier Name: Title: Fair, Board of Supervisors Title 1 By:_ , Name: Title: 4 SUBAGMT2 Dated: October 14, 1997 STATE OF CALIFORNIA ) COUNTY OF CONTRA COSTA ) On October 14, 1997 before me, Phil Batchelor, Clerk of the Board of Supervisors and County Administrat r Contra ccogto County, personally appeared�u�ervisor Dark DeSaulnier who is personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/ their authorized capacity(ies), and that by his/ her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. By %jj JA Deputy Cle BENEFICIARY: Southern Pacific Bank Name: Title: 5 SUBAGMT2 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No.5907 ------- — ---- - State of 0lA L-1 W N l A County of SAN �Atiba b On G before meV10-1D 1 U60 Ci DATE NAME,TITLE OF OFFI ER.E.G..-JANE DbE,NOTARY PUBLIC- personally appeared NAME(S)OF SIGNER(S) personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose names) s�af-e— subscribed to the within instrument and ac- knowledged to me thatC they executed the same in 0§/.4&p4h_ � authorized M.G.VICTORIO capacity(ies), and that by(�@3/''^''I-r�rr'n+r— commission# 1162855 Notary Public- alifornia signature(s) on the instrument the person(s), C Son Francisco County - or the entity upon behalf of which the My Comm.BpxesNov23=1 person(s) acted, executed the instrument. WITNESS my hand and official seal. SIGNATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ® CORPORATE OFFICER ' TITLE OR TYPE OF DOCUMENT TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY-IN-FACT NUMBER OF PAGES ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: DATE OF DOCUMENT SIGNER IS REPRESENTING: NAME OF PERSON(S)OR ENTITY(IES) SIGNER(S)OTHER THAN NAMED ABOVE m1993 NATIONAL NOTARY ASSOCIATION-8236 Remmet Ave.,P.O.Box 7184•Canoga Park,CA 91309.7184 ACKNOWLEDGMENTS State of ) ss. County of ) On , 199, before me, , a Notary Public, personally appeared , personally known to me(or proved to me on the basis of satisfactory evidence)to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity(ies),and that by his/her signature on the instrument the person,or the entity upon behalf of which the person acted,executed the instrument. WITNESS my hand and official seal. Signature (Seal) State of ) ss. County of ) On , 199_, before me, , a Notary Public, personally appeared ,personally known to me(or proved to me on the basis of satisfactory evidence)to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity(ies), and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted,executed the instrument. WITNESS my hand and official seal. Signature (Seal) 6 SUBAGMT2 EXHIBIT 'A' Description: The land referred to herein is situated in the State of California, County of Contra Costa, CITY OF CONCORD, described as follows: PARCEL ONE: PARCEL A, AS SAID PARCEL IS SHOWN ON THE RECORD OF SURVEY MAP, FILED NOVEMBER 8, 1972, IN BOOK 55 OF LICENSED SURVEYOR'S MAPS, PAGE 27, CONTRA COSTA COUNTY RECORDS. EXCEPTING THEREFROM: AN UNDIVIDED 1/2 INTEREST IN AND TO ALL OIL, GAS, CASINGHEAD GASOLINE AND HYDROCARBONS AND MINERAL SUBSTANCES BELOW A POINT 500 FEET BELOW THE SURFACE OF SAID REAL PROPERTY, TOGETHER WITH THE RIGHT TO TAKE, REMOVE, MINE AND DISPOSE OF SAID OIL, GAS, CASINGHEAD GASOLINE AND OTHER HYDROCARBONS AND MINERALS, AS RESERVED IN THE DEED FROM JOHN D. BISSO, ELEANOR M. BISSO AND LOUIS A. BISSO, EACH AS TO AN UNDIVIDED 1/6 INTEREST; AND GEORGE BISSO, EDITH I. B. FIRPO, LOUISE MINNS AND ROSE CAPERTON, EACH AS TO AN UNDIVIDED 1/8 INTEREST AND RECORDED SEPTEMBER 1 , 1971 , IN BOOK 6468, PAGE 805, OFFICIAL RECORDS, INSTRUMENT NO. 74993. ALSO EXCEPTING THEREFROM: ALL THAT LAND DESCRIBED IN THE DEED FROM IRVING LUTZ, ET AL, TO DUFFEL FINANCIAL AND CONSTRUCTION COMPANY, RECORDED JUNE 28, 1978, IN BOOK 8899, PAGE 42, OFFICIAL RECORDS. PARCEL TWO: A NON-EXCLUSIVE EASEMENT FOR ROAD AND PUBLIC UTILITY PURPOSES OVER THAT CERTAIN 68 FOOT STRIP OF LAND ALONG THE COMMON LINE OF PARCELS A AND B, BEING THE EXTENSION OF STANWELL DRIVE, SHOWN AS "68 FOOT STRIP DEDICATED TO CONTRA COSTA COUNTY", ON THE PARCEL MAP, FILED OCTOBER 6, 1971 , IN BOOK 18 OF PARCEL MAPS, PAGES 43 AND 44 OF CONTRA COSTA COUNTY RECORDS. EXCEPT THAT PORTION LYING WITHIN PARCEL ONE ABOVE. PARCEL THREE: THE EASEMENT GRANTED IN THE DEED TO IRVING LUTZ, ET AL, RECORDED AUGUST 10, 1978, IN BOOK 8961 , OFFICIAL RECORDS, PAGE 292, AS FOLLOWS: AN EASEMENT APPURTENANT TO PARCEL ONE ABOVE, FOR INGRESS AND EGRESS, OVER A PORTION OF PARCEL "B", AS SHOWN ON THE PARCEL MAP, FILED APRIL 16, 1976, IN BOOK 44 OF PARCEL MAPS, PAGE 20, CONTRA COSTA COUNTY RECORDS, DESCRIBED AS FOLLOWS: COMMENCING AT THE MOST EASTERLY CORNER OF SAID PARCEL "B" (44 P.M. 20), SAID CORNER BEING ON THE WESTERLY RIGHT OF WAY LINE OF BISSO LANE; THENCE ALONG THE EASTERLY LINE OF SAID PARCEL "B" (44 P.M. 20), NORTH 050 57' 48" WEST, 87.50 FEET TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION; THENCE FROM SAID TRUE POINT OF BEGINNING LEAVING THE WESTERLY RIGHT OF WAY LINE OF BISSO LANE SOUTH 840 27' 38" WEST, 197.32 FEET; THENCE NORTH 750 34' 13" WEST, 24.00 FEET; THENCE NORTH 140 25' 47" EAST, 65.18 FEET; THENCE NORTH 750 34' 13" WEST, 21 .00 FEET; THENCE NORTH 140 25' 47" EAST, 7.00 FEET; THENCE SOUTH 750 34' 13" EAST, 45.00 FEET; THENCE SOUTH 140 25' 47" WEST, 46.65 FEET; THENCE NORTH 840 27' 38" EAST, 188.43 FEET TO THE WESTERLY RIGHT OF WAY LINE OF BISSO LANE, BEING THE EASTERLY LINE OF PARCEL "B" (44 P.M. 20); THENCE ALONG SAID EASTERLY LINE OF PARCEL "B" (44 P.M. 20) SOUTH 050 57' 48" EAST, 24.00 FEET TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION. PARCEL FOUR: THE EASEMENT RESERVED IN THE DEED FROM DUFFEL FINANCIAL AND CONSTRUCTION COMPANY, RECORDED DECEMBER 26, 1973, IN BOOK 7120, PAGE 35, OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: A RIGHT OF WAY (NOT TO BE EXCLUSIVE) AS AN APPURTENANCE TO PARCEL A AS SHOWN ON RECORD OF SURVEY, FILED NOVEMBER 8, 1972, IN BOOK 55 OF LICENSED SURVEYORS MAPS, AT PAGE 27, CONTRA COSTA COUNTY RECORDS, FOR USE AS A ROADWAY FOR VEHICLES OF ALL KINDS, PEDESTRIANS AND ANIMALS, FOR WATER, GAS, OIL AND SEWER PIPE LINES, AND FOR TELEPHONE, ELECTRIC LIGHT AND POWER LINES, TOGETHER WITH THE NECESSARY POLES OR CONDUITS, TO CARRY SAID LINES, OVER, UNDER AND UPON A STRIP OF LAND 12.5 FEET IN WIDTH THE NORTHERLY LINE OF WHICH IS THE NORTH LINE OF PARCEL B OF SAID MAP (55 L.S.M. 27). ASSESSORS PARCEL NO. 112-250-022 Loan No. SF00026 License No. RECORDING REQUESTED BY And When Recorded Mail To: Southern Pacific Bank 12300 Wilshire Blvd. Los Angeles,CA 90025 [Space above this line for Recorders Use] ESTOPPEL/OFFSET AFFIDAVIT AND MODIFICATION TO:Southern Pacific Bank RE:LOAN NO.SF00026 LEASE DATED: 624/97 LESSOR DeveloPiilent Enterprises, Inc. LESSEE Contra Costa County, a political subdivision of the State of Calif ON SAID PREMISES LOCATED AND ADDRESSED AS: 2450 Stanwell Avenue,SUITE 200, 210 & 220, Concord, California GENTLEMEN: The undersigned,as LESSEE,hereby confirms and represents to you the following: 1) A certain above describes lease from LESSOR to County of Coma lblitica7 guh�3i7 of the State of Calif LESSEE:County of ntra S a State of 1 ornla ,together with amendments dated9,/4:6,/97 is now in full force and effect and there are no other agreements between Lessee and Lessor. 2) LESSEE has accepted and is now in possession of said premises,pursuant to the terms of the referenced lease. 3) LESSEE acknowledges that an Assignment of LESSOR'S interest in said lease will be or has been made to SOUTHERN PACIFIC BANK and that no modification,adjustment,revision or voluntary cancellation of said lease or amendments thereof shall be effective unless prior written consent of SOUTHERN PACIFIC BANK is obtained. Until further notice from Lender payments under said lease may continue as heretofore. 4) LESSEE and LESSOR agree that upon the extension or renewal of existing lease(s),any reduction in rent exceeding 5%of the present amount shown in Paragraph 10 herein or any rental concessions shall not be valid unless Lender's prior written consent is obtained. 5) In the event of default under said lease by either LESSEE LESSOR,SOUTHERN PACIFIC BANK will be notified by written notice at least 60 days prior to any action to terminate said lease. 6) No offset,credit for,or payment of rent under said lease has been paid more that 60 days in advance of its due date,nor will any future rent be paid more than 60 days in advance of its due date. 7) That all provisions of said lease and the amendment referred to above are hereby ratified and there are no further modifications for amendments except by agreement dated n/a 8) That the building(s)improvements and space required to be fumished according to the aforesaid lease have been satisfactorily completed in all respects. 9) That the LESSOR has fulfilled all of its duties of an inducement nature and is not in default in any manner in the performance of any of the terms of said lease. 10)Thatsand 'final base rental in the amb9t of$ 1,$20.00 commenced to acture on the f 1rSt day of JJ ll�y 197 r ,urjgnt lease term expires on_-6/30/98 The present rental amount,(excluding overage)is i Ulf 11) That the undersigned Wis not currently paying percentage rent('Percentage Rent or Overage Rent')over and above the base rent indicated above. A schedule of Percentage Rental paid,if any,during the twelve months preceding this letter,on a month by month basis is attached hereto as an Exhibit. 12) That we have no notice of an assignment,hypothecation,or pledge or rents,except to your company or n/a 13) The a no agreements between LESSOR/LESSEE,or any other party,relating to an'Option to Purchase"except those dated n�a 14) LESSEE shall not vacate or abandon the premises at any time during the term hereof;unless done so pursuant to the terms of said lease. The abostatements are made p ) understanding thaour company will reply on them in connection with the making of,a loan colla ally se an of u se,and a statements are true to the best of our knowledge and belief.!'; y� essee D e LWOWa Date ye Witness Estopp.dod/97 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Southern Pacific Bank 12300 Wilshire Boulevard Los Angeles,California 90025 Attention: LOAN SERVICING Loan No.: SF00026 THIS AGREEMENT MAY BE EXECUTED IN TWO OR MORE COUNTER PARTS EACH OF WHICH SHALL BE DEEMED AN ORIGINAL AND ALL OF WHICH TAKEN TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT. SUBORDINATION ATTORNMENT AND NON-DISTURBANCE AGREEMENT This Sulxxdination, Attornment and Non-Disturbance Agreement ("Agreement") is made as of December 8, 1997 by and among Development Enterprises, Inc. ("Lessor") whose address is 8633 Auburn Folsom Rd;,_ Granite Bay and Contra---- Costa ontra _Costa County - ("Lessee"), whose address is 2450 Stanwell Avenue, Suite 270, Concord, CA 94520, and Southern Pacific Bank ("Beneficiary")whose address 12300 Wilshire Boulevard,Los Angeles,California 90025. A. The Property. The term "Property", as used herein, shall mean the real property situated in the County of Contra Costa, State of California, legally described in Exhibit A attached hereto and by this reference made a part hereof, together with all buildings, structures, improvements and fixtures now or hereafter located thereon,and together with all easements and other rights appurtenant thereto. B. The Loan; Security Documents;Deed of Trust. Lessor has borrowed certain sums from the Beneficiary as evidenced by a promissory note dated December 8, 1997, in the original principal amount of$1,165,000.00 (the"Note") and has heretofore encumbered the Property as security for the payment of the Note and its obligations to Beneficiary and, for such purpose, has entered into various instruments and documents (collectively,the "Security Documents"), including, without limitation, a Deed of Trust,Assignment of Rents and Leases and Security Agreement of even date with the Note(the"Deed of Trust")from Lessor for the use and benefit of the Beneficiary,which Deed of Trust has been recorded in the official records of the county where the Property is located. C. The Lease. Pursuant to the terms and provisions of a lease dated as of June 24, 1997, between Lessor and Lessee(the"Lease"), a portion of the Property has been leased to Lessee,which Lease is subordinate to the terms and provisions of the Security Documents. D. Purposes. In connection with the above-mentioned transactions, Lessor and Lessee have agreed to offer certain assurances and representations to the Beneficiary, and all parties agree to provide for (i) confirmation of the subordination of the Lease to the Security Documents; (ii) the continuation of the Lease notwithstanding any foreclosure of the liens created by the Deed of Trust subject to certain conditions; and(iii)Lessee's attornment to the Beneficiary or to such other parties as may acquire title to the Property as the result of any foreclosure, any conveyance of the Property in lieu of foreclosure,or otherwise 1 SUBAGMT2 AGREEMENT NOW, THEREFORE; in consideration of the mutual terms and provisions hereinafter contained and other good and valuable consideration received by each party from the other,the receipt and sufficiency of which are hereby acknowledged,the parties agree as follows: 1. Notices of Default to Beneficiary. Notwithstanding anything to the contrary in the Lease, Lessee shall personally deliver to Beneficiary or mail to Beneficiary (by certified mail, return receipt requested),at Beneficiary's address set forth above,written notice of any default under the Lease by Lessor, and if within the time provided in the Lease for curing thereof by Lessor,Beneficiary performs or causes to be performed all such obligations with respect to which Lessor is in default which can be cured by the payment of money, any right of Lessee to terminate the Lease by reason of such default shall cease and be null and void; provided, however, Beneficiary shall not be obligated to cure any such default under the Lease. 2. Subordination of Lease to Security Documents. Lessee hereby confirms that its leasehold estate in the Property and all of Lessee's rights under the Lease are subordinate to the Security Documents and to all extensions, renewals, modifications, consolidations and replacements thereof, to the full extent of all obligations secured or to be secured thereby including interest thereon and any future advances thereunder. 3. Non-Disturbance of Lessee. Beneficiary agrees that, for so long as Lessee shall perform and satisfy all obligations of Lessee under the Lease in accordance with its terms, neither the Lease nor Lessee's rights pursuant thereto shall be disturbed or affected by any foreclosure of the liens created by the Deed of Trust or conveyance in lieu of foreclosure. Beneficiary's obligations under this Paragraph 3 shall be null and void if Lessee shall, at any time, default in the timely performance of the Lessee's obligations under the Lease or this Agreement and not cure such default within the time, if any,allowed in the Lease. 4. Beneficiary as Lessor after Foreclosure.In the event that Beneficiary(or any other party) shall acquire title to the Property or shall succeed to Lessor's interest in the Lease, whether through foreclosure of the liens created by the Deed of Trust, conveyance in lieu of foreclosure, or otherwise, Beneficiary (or such other party) shall thereupon, and without the necessity of attornment or other act or agreement, be substituted as Lessee's landlord under the Lease, and shall be entitled to the rights and benefits and subject to the obligations thereof, provided that neither Beneficiary nor any other party shall be: (a) liable for any act or omission of any prior landlord under the Lease (including Lessor) and all liability of Beneficiary (or such other party) for damages for breach of any covenant, duty or obligation of landlord under the Lease shall be satisfied only out of the interest of Beneficiary(or such other party)in the Property;or (b) subject to any offsets or defenses which Lessee might have against any prior landlord (including Lessor);or (c) bound by Lessee's payment of any rent or additional rent that Lessee may have paid to any prior landlord under the Lease (including Lessor) for a period in excess of one month or bound by Lessee's.payment of any rent other than in strict accordance with the Lease;or (d) bound by any amendment, modification, extension, supplement, or assignment of the Lease made without Beneficiary's prior written consent;or (e) bound by any agreement for abatement of rent or bound for"free rent,"unless the same 2 SUBAGMT2 is specifically provided in the Lease; or (f) liable to Lessee or any other party for any conflict between the provisions of the Lease and the provisions of any other lease affecting the Property, including, but not limited to,any provisions relating to renewal options and options to expand,and in the event of such a conflict, Lessee shall have no right to take remedial action against Beneficiary or against any other party succeeding to Lessor. Nothing in this subparagraph (f) shall preclude Lessee from asserting any right under the Lease that it may have against Lessor; or (g) liable to Lessee or any other party with respect to any warranties or representations of any nature whatsoever, either express or implied, made to Lessee by Lessor, any agent or employee of Lessor or any other party, whether pursuant to the Lease or otherwise, including, without limitation, .any warranties or representations respecting use, compliance with zoning, Lessor's title, Lessor's authority, habitability, fitness for purpose or possession; or (h) liable for any tenant improvement or construction requirements (including, without limitation, any allowances for tenant improvements or construction) of any prior landlord under the Lease (including Lessor) which may have been or may, in the future,be payable by such landlord(including Lessor)under the Lease; and Lessee hereby agrees to attorn to and recognize such Beneficiary (or such other party) as Lessor. 5. Payment of Rent Upon Default. Lessee has been advised that the Security Documents give Beneficiary the right to collect rent and other sums payable under the Lease directly from Lessee upon the occurrence of a default thereunder,and Lessee agrees that upon the receipt from Beneficiary of notice of any such default, Lessee will thereafter pay all rent and other sums payable under the Lease directly to Beneficiary(or as Beneficiary shall direct)as they become due and payable. 6. Binding Effect. The provisions of this Agreement shall be covenants running with the Property, and shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs,representatives, successors and assigns. This Agreement satisfies any condition or requirement in the Lease relating to the granting of a non-disturbance agreement. 7. No Waiver. Lessor, as landlord under the Lease and grantor or trustor under the Deed of Trust, acknowledges and agrees for itself and its successors and assigns that this Agreement does not constitute a waiver by Beneficiary of any of its rights under the Deed of Trust or any other Security Documents, or in any way release Lessor from its obligations to comply with the terms, provisions, conditions, covenants, agreements, or clauses of the Deed of Trust or any other such Security Document or confer any rights or benefits upon Lessor. Lessor and Lessee agree that, in the event of any conflict between the Lease and this Agreement, the terms and provisions of this Agreement shall govern and control. Nothing contained in this Agreement shall be construed to derogate from or in any way impair or affect the lien or provisions of the Deed of Trust. 3 SUBAGMT2 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. LESSOR: �w By:_ — By: — Name: Name: Title: Title: A B �� Y•_ 4 , Name: Title: LESSEE: f By: W44ex By:_ Name: Mark DeSaulnier Name: Title: Chair, Board of Supervisors Title By:_ =-y" Name: Title: 4 SUBAGMT2 Dated: October 14, 1997 STATE OF CALIFORNIA ) COUNTY OF CONTRA COSTA ) On October 14, 1997 before me, Phil Batchelor, Clerk of the Board of Supervisors and County Administrato��Contra rTc De?aui i'ier personally appeared who is personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/ their authorized capacity(ies), and that by his/ her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. By Deputy Cl k BENEFICIARY: Southern Pacific Bank By: Name: C(4Aie- 05eodoL)e— Title: Via jk"c�Q 5 SUBAGMT2 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No.5907 State of OALIU 16 County of SA � l AM(!I. CP, On Vl � 9 , M-1 before me, f'�IUL���� ko-FA DATE NAME,TITLE OF OFFICER-E.G..*JANE DOE,NOTARY PUBLIC' personally appeared _-H'151- Of�&,4� &L5 NAME(S)OF SIGNER(S) personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)oafe- subscribed to the within instrument and ac- knowledged to me that &sho4hey-executed the same in ��--by t authorized �.. G. VICTORIOA ca acit les and that b y `' CD _s:on" 1162955 p Y( ) Y Z . ti� �ti ca+;rornia Zsignature(s) on the instrument the person(s), sor rcn`'`o County - Corn_ = i'e or the entity upon behalf of which the Nty . tiov23,2J01 person(s) acted, executed the instrument. WITNESS my hand nd official seal. SIGNATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent ` fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY-IN-FACT NUMBER OF PAGES ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: DATE OF DOCUMENT SIGNER IS REPRESENTING: NAME OF PERSON(S)OR ENTRY(IES) SIGNER(S) OTHER THAN NAMED ABOVE 01993 NATIONAL NOTARY ASSOCIATION•8236 Remmet Ave..P.O.Box 7184•Canoga Park,CA 91309-7184 ACKNOWLEDGMENTS State of ) ss. County of ) On , 199_, before me, a Notary Public, personally appeared ,personally known to me(or proved to me on the basis of satisfactory evidence)to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity(ies), and that by his/her signature on the instrument the person,or the entity upon behalf of which the person acted,executed the instrument. WITNESS my hand and official seal. Signature (Seal) State of_ ) ss. County of ) On , 199_, before me, , a Notary Public, personally appeared , personally known to me(or proved to me on the basis of satisfactory evidence)to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity(ies), and that by his/her signature on the instrument the person,or the entity upon behalf of which the person acted,executed the instrument. WITNESS my hand and official seal. Signature (Seal) 6 SUBAGMT2 EXHIBIT "A" Description: The land referred to herein is situated in the State of California, County of Contra Costa, CITY OF CONCORD, described as follows: PARCEL ONE: PARCEL A, AS SAID PARCEL IS SHOWN ON THE RECORD OF SURVEY MAP, FILED NOVEMBER 8, 1972, IN BOOK 55 OF LICENSED SURVEYOR'S MAPS, PAGE 27, CONTRA COSTA COUNTY RECORDS. EXCEPTING THEREFROM: AN UNDIVIDED 1/2 INTEREST IN AND TO ALL OIL, GAS, CASINGHEAD GASOLINE AND HYDROCARBONS AND MINERAL SUBSTANCES BELOW A POINT 500 FEET BELOW THE SURFACE OF SAID REAL PROPERTY, TOGETHER WITH THE RIGHT TO TAKE, REMOVE, MINE AND DISPOSE OF SAID OIL, GAS, CASINGHEAD GASOLINE AND OTHER HYDROCARBONS AND MINERALS, AS RESERVED IN THE DEED FROM JOHN D. BISSO, ELEANOR M. BISSO AND LOUIS A. BISSO, EACH AS TO AN UNDIVIDED 1/6 INTEREST; AND GEORGE BISSO, EDITH I. B. FIRPO, LOUISE MINNS AND ROSE CAPERTON, EACH AS TO AN UNDIVIDED 1/8 INTEREST AND RECORDED SEPTEMBER 1 , 1971 , IN BOOK 6468, PAGE 805, OFFICIAL RECORDS, INSTRUMENT NO. 74993. ALSO EXCEPTING THEREFROM: ALL THAT LAND DESCRIBED IN THE DEED FROM IRVING LUTZ, ET AL, TO DUFFEL FINANCIAL AND CONSTRUCTION COMPANY, RECORDED JUNE 28, 1978, IN BOOK 8899, PAGE 42, OFFICIAL RECORDS. PARCEL TWO: A NON-EXCLUSIVE EASEMENT FOR ROAD AND PUBLIC UTILITY PURPOSES OVER THAT CERTAIN 68 FOOT STRIP OF LAND ALONG THE COMMON LINE OF PARCELS A AND B, BEING THE EXTENSION OF STANWELL DRIVE, SHOWN AS "68 FOOT STRIP DEDICATED TO CONTRA COSTA COUNTY", ON THE PARCEL MAP, FILED OCTOBER 6, 1971 , IN BOOK 18 OF PARCEL MAPS, PAGES 43 AND 44 OF CONTRA COSTA COUNTY RECORDS. EXCEPT THAT PORTION LYING WITHIN PARCEL ONE ABOVE. PARCEL THREE: THE EASEMENT GRANTED IN THE DEED TO IRVING LUTZ, ET AL, RECORDED AUGUST 10, 1978, IN BOOK 8961 , OFFICIAL RECORDS, PAGE 292, AS FOLLOWS: AN EASEMENT APPURTENANT TO PARCEL ONE ABOVE, FOR INGRESS AND EGRESS, OVER A PORTION OF PARCEL "B", AS SHOWN ON THE PARCEL MAP, FILED APRIL 16, 1976, IN BOOK 44 OF PARCEL MAPS, PAGE 20, CONTRA COSTA COUNTY RECORDS, DESCRIBED AS FOLLOWS: COMMENCING AT THE MOST EASTERLY CORNER OF SAID PARCEL "B" (44 P.M. 20), SAID CORNER BEING ON THE WESTERLY RIGHT OF WAY LINE OF BISSO LANE; THENCE ALONG THE EASTERLY LINE OF SAID PARCEL "B" (44 P.M. 20), NORTH 050 57' 48" WEST, 87.50 FEET TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION; THENCE FROM SAID TRUE POINT OF BEGINNING LEAVING THE WESTERLY RIGHT OF WAY LINE OF BISSO LANE SOUTH 840 27' 38" WEST, 197.32 FEET; THENCE NORTH 750 34' 13" WEST, 24.00 FEET; THENCE NORTH 141 25' 47" EAST, 65.18 FEET; THENCE NORTH 750 34' 13" WEST, 21 .00 FEET; THENCE NORTH 140 25' 47" EAST, 7.00 FEET; THENCE SOUTH 750 34' 13" EAST, 45.00 FEET; THENCE SOUTH 141 25' 47" WEST, 46.65 FEET; THENCE NORTH 840 27' 38" EAST, 188.43 FEET TO THE WESTERLY RIGHT OF WAY LINE OF BISSO LANE, BEING THE EASTERLY LINE OF PARCEL "B" (44 P.M. 20); THENCE ALONG SAID EASTERLY LINE OF PARCEL "B" (44 P.M. 20) SOUTH 050 57' 48" EAST, 24.00 FEET TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION. PARCEL FOUR: THE EASEMENT RESERVED IN THE DEED FROM DUFFEL FINANCIAL AND CONSTRUCTION COMPANY, RECORDED DECEMBER 26, 1973, IN BOOK 7120, PAGE 35, OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: A RIGHT OF WAY (NOT TO BE EXCLUSIVE) AS AN APPURTENANCE TO. PARCEL A AS SHOWN ON RECORD OF SURVEY, FILED NOVEMBER 8, 1972, IN BOOK 55 OF LICENSED SURVEYORS MAPS, AT PAGE 27, CONTRA COSTA COUNTY RECORDS, FOR USE AS A ROADWAY FOR VEHICLES OF ALL KINDS, PEDESTRIANS AND ANIMALS, FOR WATER, GAS, OIL AND SEWER PIPE LINES, AND FOR TELEPHONE, ELECTRIC LIGHT AND POWER LINES, TOGETHER WITH THE NECESSARY POLES OR CONDUITS, TO CARRY SAID LINES, OVER, UNDER AND UPON A STRIP OF LAND 12.5 FEET IN WIDTH THE NORTHERLY LINE OF WHICH IS THE NORTH LINE OF PARCEL B OF SAID MAP (55 L.S.M. 27). ASSESSORS PARCEL NO. 112-260-022 Loan No. SF00026 License No. RECORDING REQUESTED BY And When Recorded Mail To: Southern Pacific Bank 12300 Wilshire Blvd. Los Angeles,CA 90025 [Space above this line for Recorders Use] ESTOPPEL/ OFFSET AFFIDAVIT AND MODIFICATION TO:Southern Pacific Bank RE:LOAN NO.SF00026 LEASE DATED: 6/24/97 LESSOR: Development Enterprises, Inc. LESSEE CONTRA COSTA COUNTY,a political subdivision of the State of Cal'f ON SAID PREMISES LOCATED AND ADDRESSED AS: 2450 Stanwell Avenue,SUITE 270,Concord,CA,94520 GENTLEMEN: The undersigned,as LESSEE,hereby confirms and represents to you the following: 1) A certain above describes lease from LESSOR to Count of Contra Costa, a wlitical -subdj4sion of the State of Calif LESSEE:Coun-1y of Z:ont—xa ' sT-a State of a iforma together with amendments dated n/a is now in full force and effect and there are no other agreements between Lessee and Lessor. 2) LESSEE has accepted and is now in possession of said premises,pursuant to the terms of the referenced lease. 3) LESSEE acknowledges that an Assignment of LESSOR'S interest in said lease will be or has been made to SOUTHERN PACIFIC BANK and that no modification,adjustment,revision or voluntary cancellation of said lease or amendments thereof shall be effective unless prior written consent of SOUTHERN PACIFIC BANK is obtained. Until further notice from Lender payments under said lease may continue as heretofore. 4) LESSEE and LESSOR agree that upon the extension or renewal of existing lease(s),any reduction in rent exceeding 5%of the present amount shown in Paragraph 10 herein or any rental concessions shall not be valid unless Lender's prior written consent is obtained. 5) In the event of default under said lease by either LESSEE LESSOR,SOUTHERN PACIFIC BANK will be notified by written notice at least 60 days prior to any action to terminate said lease. 6) No offset,credit for,or payment of rent under said lease has been paid more that 60 days in advance of its due date,nor will any future rent be paid more than 60 days in advance of its due date. 7) That all provisions of said lease and the amendments referred to above are hereby ratified and there are no further modifications for amendments except by agreement dated. i a 8) That the building(s)improvements and space required to be furnished according to the aforesaid lease have been satisfactorily completed in all respects. 9) That the LESSOR has fulfilled all of its duties of an inducement nature and is not in default in any manner in the performance of any of the terms of said lease. 10)That s id original base rental in the amount of s 31025.00 commenced to acture on the first day of July 1997.22 co[r�nt lease term expires on June 30, 200INThe present rental amount,(excluding overage)is$ 3s�tU� U 11) That the undersigned jWis not currently paying percentage rent('Percentage Rent or Overage Rent')over and above the base rent indicated above. A schedule of Percentage Rental paid,if any,during the twelve months preceding this letter,on a month by month basis is attached hereto as an Exhibit. 12) That we hc)vae no notice of an assignment,hypothecation,or pledge or rents,except to your company or 13) There aro agreements between LESSOR/LESSEE,or any other party,,relating to an'Option to Purchase'except those dated a 14) LESSEE shall not vacate or abandon the premises at any time during the term hereof;unless done so pursuant to the terms of said lease. - The abo statements are made u e tanding that your mpany will reply on them in connection with the making of a loan colla ally sec e s se,and at atements are true to the best of our knowledge and belief. Lesse � Dat � Da e Witness Estopp.doc8/97