1995-1221_SJC HOUSING INVESTORS, L.P._ Subord. Asgmt of Leases, Rents & ProfitsRECORDED AT REQUEST OF:
WHEN RECORDED RETURN TO:
San Juan Capistrano
Redevelopment Agency
32400 Paseo Adelanto
San Juan Capistrano,
California 92675
Attn: Executive Director
Recorded in the County of Orange, California
Gary L. Granville, Clerk/Recorder
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006 9002639 09 30 18950568795 11;16am 12/21/95
A34 A36 10 0 14.00
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(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
This Assignment of Leases, Rents and Profits is recorded at the request and for
the benefit of the San Juan Capistrano Redevelopment Agency and is exempt from
the payment of a recording fee pursuant to Government Code Section 6103.
SUBORDINATED
\\ ASSIGNMENT OF LEASES, RENTS AND PROFITS
THIS ASSIGNMENT OF LEASES, RENTS AND PROFITS (this "Assignment")
dated this 30th day of November, 1995, is given by SAN JUAN CAPISTRANO
HOUSING INVESTORS, L.P., a California limited partnership ("Assignor"), to the SAN
JUAN CAPISTRANO REDEVELOPMENT AGENCY, a public body, corporate and politic
("Agency").
RECITALS:
A. Assignor is the owner of that certain real property located in the City of
San Juan Capistrano, County of Orange, State of California, and more particularly
described in Exhibit "A" attached hereto and made a part hereof (herein "Real
Property").
B. Assignor has requested Agency to provide financial assistance in an
amount of ONE MILLION FIVE HUNDRED FIFTY THOUSAND DOLLARS ($1,550,000)
(the "Agency Loan") pursuant to the terms of a Promissory Note of even date
herewith (the "Note"), a Deed of Trust of even date herewith ("Deed of Trust"), and
an Owner Participation Agreement dated September 19, 1995 (the "OPA").
C. The Deed of Trust applies to the Real Property and all buildings,
improvements and fixtures located thereon (hereinafter referred to together as the
"Project").
NOW, THEREFORE, in consideration of the foregoing, Assignor does hereby
grant, transfer and assign to Agency all of Assignor's right, title and interest in and
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to: (i) Any present or future lease or tenancy, whether written or oral, covering or
affecting all or any part of the Project, and together with: (a) all guaranties of the
aforesaid leases including guaranties of tenant performance; (b) all insurance
proceeds, including rental loss coverage as to said leases; (c) all awards or proceeds
from any condemnation of the property or any part thereof; (d) all judgments or
settlements of claims in favor of Assignor and arising out of said leases in any court
proceeding, including any bankruptcy, reorganization, insolvency or debtor proceeding
or case or otherwise; and (e) all security deposits made thereunder (all of which,
together with any extensions, modifications or renewals, are collectively referred to
as the "Leases" or singularly as a "Lease"); (ii) All rents and other income or payments
of any kind due or payable or to become due or payable to Assignor as the result of
any use, possession or occupancy of all or any portion of the Project including but not
limited to any payments for reimbursement of common area maintenance expenses,
ad valorem taxes, insurance premiums, utilities, special assessments and cleaning and
janitorial costs, or as the result of the use of or lease of any personal property
constituting a part of the Project (all of which are collectively referred to as "Rents"),
whether the Rents accrue before or after foreclosure of the Trust Deed or during any
period of redemption from it; and (iii) all revenues, receipts, income, accounts,
accounts receivable and other receivables from the Project including, without
limitation, revenues, receipts, income, receivables and accounts relating to or arising
from rentals, rent equivalent income, vending machines, telephone and television
systems, guest laundry, the provision or sale of other goods and services, and any
other items of revenue, receipts or other income, as from time to time amended, in
excess of all costs, charges, and expenses which are directly attributable to the
operation, repair and maintenance of the Project including all taxes, rates, charges,
levies and assessments imposed by any competent authority upon or in respect of the
Project (the "Profits"); to secure:
(i) Payment of all indebtedness evidenced by the Note and all other
sums secured by the Deed of Trust or this Assignment; and
(ii) Performance and discharge of each and every obligation, covenant
and agreement of Assignor contained herein and in the Note and
Deed of Trust.
Assignor further covenants and agrees with Agency as follows:
1. Performance of Leases. Subject to the provisions of the Restrictive
Covenants recorded pursuant to the OPA, Assignor shall faithfully abide by, perform
and discharge each obligation, covenant and agreement which it becomes liable to
observe or perform under any present or future Lease and enforce or secure the
performance of each obligation, covenant, condition and agreement to be performed
by the tenant under each Lease. Except in the ordinary course of operating the
Project and to the extent consistent with the Restrictive Covenants, Assignor shall not
hereafter cancel, surrender or terminate any Lease. Assignor shall observe and
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comply with all provisions of law applicable to the operation and ownership of the
Project. Assignor shall further, at its sole cost and expense, appear in and defend any
action or proceeding arising under, growing out of or in any manner connected with
any Lease or the obligations, duties, or liabilities of Assignor pursuant to any Lease.
2. Collection of Rents and Profits. The condition of this Assignment is such
that unless and until there occurs an Event of Default (as herein defined) under the
provisions of this Assignment or the Note, Assignor has the right under a license
retained and reserved hereby (but limited as provided in this Assignment) to collect
(when due and not more than 3 months in advance) sums received pursuant to said
Leases, Rents and Profits and apply the same in accordance with the provisions of the
Note, provided, however, that from and after the occurrence of an Event of Default
under this Assignment or, the Note or Deed of Trust, such license will, without any
further action, be revoked and the right of Assignor to enjoy the powers and privileges
of said Leases, Rents and Profits will wholly cease, whereupon Agency shall be
entitled to all of Assignor's right, title and interest in and to the Leases, Rents and
Profits hereby assigned, including specifically the right to collect Rents and Profits.
3. Events of Default. Any of the following constitutes an Event of Default
under this Assignment:
(i) Assignor fails to perform or observe any agreement, covenant, or
condition required under this Assignment and such failure is not
corrected to Agency's satisfaction within 60 days of notice to
Assignor (the "Non -Monetary Cure Period"); provided, however,
if Assignor cannot reasonably perform within such Non -Monetary
Cure Period, Assignor may have such additional time to perform
as may be reasonably required so long as Assignor has
commenced such cure within the Non -Monetary Cure Period and
thereafter diligently continues such cure to completion.
(ii) There occurs an event of default by Assignor under the Note or
Deed of Trust.
4. Remedies. Upon the occurrence of any Event of Default, Agency may,
at its option, at any time:
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(i) In the name, place and stead of Assignor and as a mortgage in
possession (i) enter upon, manage and operate the Project or
retain the services of one or more independent contractors to
manage and operate all or any part of the Project; (ii) make,
enforce, modify and accept surrender of the Leases; (iii) obtain or
evict tenants, collect, sue for, fix or modify the Rents and Profits
and enforce all rights of Assignor under the Leases; (iv) give
notice to the parties obligated under the Leases to perform those
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obligations for the benefit of Agency in like manner as if Agency
were the Assignor; and (v) perform any other acts that may be
necessary or proper to protect the security of this Assignment.
(ii) With or without exercising the rights set forth in subparagraph (A)
above, give or require Assignor to give notice to any or all tenants
under the Leases, authorizing and directing the tenants to pay all
Rents under the Leases directly to Agency and to perform those
obligations for the benefit of Agency, in like manner as if it were
the Assignor.
(iii) Apply for the appointment of a receiver regarding the Project to
take possession and to operate the Property and to collect the
rents, profits, issues, and revenues thereof and Assignor will pay
to Agency upon demand, all expenses including receiver's fees,
attorneys' fees, costs and agents' compensation incurred in
connection therewith together with interest thereon.
The exercise of any of the foregoing rights or remedies and the application of
the Rents, Profits and income will not cure or waive any Event of Default, or notice
of default, or invalidate any act done pursuant to such notice. This Assignment in no
way operates to prevent Agency from pursuing any remedy which it now has or
hereafter may have under the terms and conditions of any other document securing
the Note but will be deemed an additional remedy, cumulative with the remedies
granted therein.
5. Protecting the Security of This Assignment. Should Assignor fail to
perform or observe any covenant or agreement contained in this Assignment, Agency
may, without obligation to do so and without releasing Assignor from any obligation
of any kind, make or do the same in such manner and to such extent as Agency
deems appropriate to protect its security as evidenced by this Assignment, including
specifically and without limitation, the right to commence, appear in, and defend any
action or proceeding purporting to affect said security, or the right or powers of
Assignor, and also the right to perform and discharge each obligation, covenant and
agreement of Assignor contained in the Leases, and in exercising any such powers to
pay necessary costs and expenses, employ counsel and pay reasonable attorney's
fees. Assignor shall pay immediately upon demand all sums expended by Agency
under the authority of this Assignment, together with interest thereon at the rate
stated in the Note, and the same will be added to said indebtedness and be secured
hereby and by the Deed of Trust.
6. Present Assignment. This Assignment constitutes a perfected, absolute
and present assignment.
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7. Survival of Obligation to Comply with Trust Deed and This Assignment.
This Assignment is given as security in addition to the Deed of Trust. Assignor shall
observe and comply with all terms and conditions contained in the Deed of Trust and
in this Assignment.
8. Agency Not to Become Liable and Third Parties Not to Acguire Rights.
Agency is not obligated to perform or discharge, nor does it hereby undertake to
perform or discharge, any obligation, duty or liability of Assignor under the Leases.
This Assignment will not operate to place upon Agency responsibility for the control,
care, management or repair of the Project or for the performance of any of the terms
and conditions of the Leases. Agency shall not be responsible or liable for any waste
committed on the Project, for any dangerous or defective condition of the Project, for
any negligence in the management, upkeep, repair or control of the Project or for
failure to collect the Rents. No third party shall acquire any rights against Agency as
a result of this Assignment, the provisions of which have been granted to Agency by
Assignor solely for the benefit of Agency. Notwithstanding any language to the
contrary contained in this Assignment, Agency shall not be deemed to be in privity of
contract with any party having contractual relations with Assignor pursuant to a Lease
unless and until Agency has exercised the remedies provided by this Assignment
following the occurrence of an Event of Default and has elected to require the
contractual performance of a party obligated by said Lease, and then Agency shall be
liable only during the period in which the remedies provided by this Assignment are
so exercised and not before or after.
9. Satisfaction. Upon the payment in full of all indebtedness secured
hereby, as evidenced by a recorded satisfaction of the Deed of Trust, this Assignment
becomes, without the need for any further satisfaction or release, null and void and
of no further effect.
10. Unenforceable Provisions Severable. All rights, powers and remedies
provided in this Assignment are intended to be exercised only to the extent that such
exercise does not violate any applicable provision of law or render this Assignment
invalid, unenforceable or unreasonable. If any term of this Assignment is held to be
invalid, illegal or unenforceable, the validity of other terms are intended to remain
unaffected.
11. Successors and Assigns. The covenants and agreements herein
contained will be binding upon, and the rights hereunder will inure to, the respective
successors and assigns of Assignor and Agency, including any purchaser at a
foreclosure sale.
12. Cautions; Amendments. The captions and headings of the paragraphs
of this Assignment are for convenience only and are not intended to interpret or define
the provisions of this Assignment. This Assignment can be amended only in a writing
signed by Assignor and Agency.
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13. Governing Law. The provisions of this Assignment shall be governed by
and construed in accordance with the internal laws of the State of California.
14. Subordination. This Assignment is subject and subordinate to all of the
following: See Addendum to the Deed of Trust recorded concurrently herewith.
The Note which is secured by this Assignment contains a subordination
agreement for the subordination of this Assignment, and this Assignment shall be
subject and subordinate to all of the liens and other matters referred to therein.
NOTICE: THIS ASSIGNMENT CONTAINS A SUBORDINATION CLAUSE WHICH
MAY RESULT IN YOUR SECURITY INTEREST IN THE PROPERTY BECOMING
SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF SOME OTHER OR
LATER SECURITY INSTRUMENT AND THE SUBORDINATION CLAUSE CONTAINS A
PROVISION WHICH MAY ALLOW THE PERSON OBLIGATED ON YOUR REAL
PROPERTY SECURITY TO OBTAIN A LOAN A PORTION OF WHICH MAY BE
EXPENDED FOR OTHER PURPOSES THAN IMPROVEMENT OF THE LAND.
IN WITNESS WHEREOF, the undersigned has executed this Assignment as of
the day and year first written hereinabove.
"Assignor"
SAN JUAN CAPISTRANO
HOUSING INVESTORS, L.P.,
a California limited partnership
By:
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LINC Housing Corporation,
Genera '
By:
13. Governing Law. The provisions of this Assignment shall be governed by
and construed in accordance with the internal laws of the State of California.
14. Subordination. This Assignment is subject and subordinate to all of the
following: See Addendum to the Deed of Trust recorded concurrently herewith.
The Note which is secured by this Assignment contains a subordination
agreement for the subordination of this Assignment, and this Assignment shall be
subject and subordinate to all of the liens and other matters referred to therein.
NOTICE: THIS ASSIGNMENT CONTAINS A SUBORDINATION CLAUSE WHICH
MAY RESULT IN YOUR SECURITY INTEREST IN THE PROPERTY BECOMING
SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF SOME OTHER OR
LATER SECURITY INSTRUMENT AND THE SUBORDINATION CLAUSE CONTAINS A
PROVISION WHICH MAY ALLOW THE PERSON OBLIGATED ON YOUR REAL
PROPERTY SECURITY TO OBTAIN A LOAN A PORTION OF WHICH MAY BE
EXPENDED FOR OTHER PURPOSES THAN IMPROVEMENT OF THE LAND.
IN WITNESS WHEREOF, the undersigned has executed this Assignment as of
the day and year first written hereinabove.
AUNCY "Assignor"
SAN JUAN CAPISfRANO
REDEVE� NT Acs, Y SAN JUAN CAPISTRANO
HOUSING INVESTORS, L.P.,
a California limited partnership
By: LINC Housing Corporation,
General Partner
ive
By:
President
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PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT
(Gov't Code 40814 & Civil Code 118 1)
State of California )
County of Orange ) ss.
City of San Juan Capistrano )
On December 20, 1995 , before me, Cheryl Johnson
City Clerk, personally appeared George Scarborough
personally known to me 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.
(SEAL)
WITNESS my hand and official seal.
City Clerk
OPTIONAL
Capacity Claimed by Signer
Municipal Corporate Officer
Executive Director
Title
Signer is Representing
City of San Juan Capistrano
Community Redevelopment Agency
Description of Attached Document
Subordinated Assignment of
Leases, Rents and Profits
Title or Type of Document
8
Number of Pages
November 30, 1995
Date of Document
San Juan Capistrano Housing Investors, LP
by LINC Housing Corporation
Signer(s) Other Than Named Above
STATE OF CALIFORNIA )
ss.
COUNTY OF
On this OM day of Wr , 19_rbefore me, . ,
idersigped ,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(e) whose names) Fare- subscribed to the within instrument and
acknowledged to me that &9heithey executed the same ini&her4hek authorized
capacity(iea), and that by Wherfth& signature(s) on the instrument the person( or
the entity upon behalf of which the person(e) acted, executed the instrument.
Witness my hand and official seal.
JEFFREY S. NO2AKI
Uj ic
NOTARY P(1B.1CCFORNIA M
M �• COUNTY
�
[SEAL]
STATE OF CALIFORNIA
ss.
COUNTY OF
RAPER � , � Ali, MM
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On this day of , 19_, 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(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or
the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
[SEAL]
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Notary Public
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EXHIBIT "A"
Description of Real Property
0
EXHIBIT "A"
That portion of the Southwest quarter of Section 6 Township 8 South, Range 7 West, San
Bernardino Base and Meridian, in the City of San Juan Capistrano, County of Orange, State
of California, described as follows:
Beginning at the intersection of the center lines of Ganado Road and the old Ortega
Highway, as shown on a map filed in book 27 page 8 of Record of Surveys in the office of
the County Recorder of Orange County, California, said point being the most Northerly
corner of land described in the deed to Arley H. Leck and wife, recorded December 24,
1954 in book 2905 page 363 of Official Records; thence South 42° 02' 00" East 104.10
feet along the center line of said Ganado Road to an angle point in said land of Leck;
thence South 03* 20' 10" West 169.97 feet; thence South 63* 23' 00" West 7.24 feet along
the Southeasterly line of said land of Leck to the true point of beginning, said point lies on
the Westerly right of way line of Rancho Viejo Road; thence South 21 ° 00' 15" East along
the Westerly right of way line of Rancho Viejo Road 15.27 feet; thence leaving said right
of way line, South 03° 20' 10" West 294.00 feet; thence South 74° 29' 00" West 255.73
feet; thence North 15* 28' 37" West 12.93 feet; thence North 59* 36' 20" West 20.50 feet
to a point on a non -tangent curve concave Northwesterly having a radius of 25.00 feet;
thence Southerly and Westerly along said curve an arc distance of 19.25 feet, through a
central angle of 440 07' 43" to a tangent line; thence South 74° 31' 23" West 51.29 feet to
a tangent curve concave Northeasterly, having a radius of 25.00 feet; thence Westerly and
Northerly along said curve an arc distance of 46.89 feet, through a central angle of 107°
27' 18" to a tangent line; thence North 01* 58' 40" Fast 87.43 feet; thence North 40° 17'
45" East 36.81 feet; thence North 03° 24' 18" Fast 65.51 feet to the Southerly line of
Parcel 2 of Parcel Map No. 85-328 as filed in book 241 pages 12 and 13 of Parcel Maps,
records of the County of Orange; thence North 63° 23' 00" East along the Southerly line of
said parcel map 218.99 feet to the Southeasterly corner of said Parcel Map No. 85-328;
thence North 160 33' 40" West along the Easterly line of said parcel map 202.59 feet to the
Southerly right of way line of Ortega Highway; thence North 680 59' 45" East along the
Southerly right of way line of Ortega Highway 124.81 feet to a tangent curve concave
Southwesterly having a radius of 25.00 feet; thence Easterly and Southerly along said curve
an arc distance of 39.27 feet, through a central angle of 90° 00' 00" to a tangent line, said
point lying on the Westerly right of way line of Rancho Viejo Road; thence South 21 ° 00'
15" Fast along the Westerly right of way line of Rancho Viejo Road 160.67 feet to the true
point of beginning.
Said land is also shown as Lot 2 of Lot Line Adjustment No. 95 -PM 85-328-1, recorded
October 30, 1995, as Instrument No. 95-480794, Official Records.
SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY
Office of the Agency Secretary
32400 Paseo Adelanto
San Juan Capistrano, California 92675
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF SAN JUAN CAPISTRANO )
This is to certify that the interest in real property conveyed by the Subordinated
Assignment of Lease, Rents and Profits, for property located at the southwest corner of Ortega
Highway and Rancho Viejo Road, dated November 30, 1995, from San Juan Capistrano Housing
Investors, L.P., to the SAN JUAN CAPISTRANO REDEVELOPMENT AGENCY, a political
corporation and/or governmental agency, to secure a Promissory Note of even date therewith to
the Agency in the sum of $1,550,000, is hereby accepted by order of the San Juan Capistrano
Redevelopment Agency Board of Directors on September 19, 1995, and the grantee consents to
recordation thereof by its duly authorized officer.
(SEAL) _
Cheryl Johnsdi, A ency Secretary
San Juan Capistrano, California
DATED: This 14th day of December, 1995
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