HomeMy WebLinkAboutR30-Economic Development Agency
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ECONOMIC DEVELOPMENT AGENCY ORIGINAL
OF THE CITY OF SAN BERNARDINO
FROM: 'Gary Van Osdel
Executive Director
SUBJECT: 303 WEST THIRD STREET - LOAN
MODIFICATION AND COLLATERAL
ASSIGNMENT AND CONSENT TO
ASSIGNMENT 2000 CDBG PROGRAM
SECTION 108 PROJECT DEVELOPMENT
LOAN AGREEMENT
DATE: February S, 2005
Synopsis of Previous Commission/Council/Committee Action(s):
On August 7, 2000, the Mayor and Common Council and the Community Development Commission authorized approval
for Loan Guarantee Assistance under Section 10S of the Housing and Community Development Act of 1974 for ilie 303
West Third Street Project and approved an Owner Participation Agreement witli 303, LLC to acquire and renovate the
building.
On December 12,2000, the Council and Commission took action to approve the final form of the HUDIOS loan agreement
with HUD and the development agreements with 303, LLC
Synopsis Continued to Next Pal!e.....
Recommended Motion(s):
~~or and Com8\on Council)
MOTION A: RESOLUTION OF THE MAYOR A OMMON C UNCIL OF THE CITY OF SAN BERNARDINO
APPROVING A 2005 LOAN MODIFICATION AND COLLATERAL ASSIGNMENT AGREEMENT
AND CONSENT TO ASSIGNMENT BY AND AMONG 303 LLC, THE REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO AND THE CITY OF SAN BERNARDINO AND
APPROVING A 2005 REDEVELOPMENT. LOAN AGREEMENT BY AND BETWEEN THE
AGENCY AND THE CITY (303 THIRD STREET PROJECT)
MOTION B:
(Community Development Commission)
RESOLUTION OF THE COMMuNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN
BERNARDINO MAKING CERTAIN FINDINGS RELATING TO THE TEMPORARY INVESTMENT
OF LOW AND MODERATE INCOME HOUSING FUNDS AND APPROVING A 2005 LOAN
MODIFIATION AND COLLATERAL ASSIGNMENT AGREEMENT AND CONSENT TO
ASSIGNMENT BY AND AMONG 303 LLC, THE CITY OF SAN BERNARDINO AND THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND APPROVING A 2005
REDEVELOPMENT LOAN AGREEMENT BY AND BETWEEN THE CITY AND THE AGENCY
(303 THIRD STREET PROJECT)
Contact Person(s):
Proj ect Area( s)
Gary Van OsdellMaggie Pacheco
Central City
Phone:
(909) 663-1044
1
Ward(s):
Supporting Data Attached:
iii Staff Report iii Resolution(s) iii Agreement(s)/Contract(s) 0 Map(s) 0 Letters
See fiscal
impact
Amount:
,
Source:
N/A
FUNDING REQUIREMENTS
N/A
SIGNATURE:
Commission/Council Notes:
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P:\Ageodas\Comm Dev Commission\CDC 200S\OS-02-22 ]03 W 3rd St.-200S Loan Modification SR.doc
COMMISSION MEETING AGENDA
Meeting Date: 02/22/2005
Agenda Item Number: /(3/J
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Economic Development Agency Staff Report
303 West Third Street - 2005 Loan Modification and Collateral Assignment Agreement
and Consent to Assignment 2000 CDBG Program Section 108
Project development Loan Agreement
February 22, 2005
Synopsis of Previous Commission/Council/Committee Action(s ):
On July 21,2003, the Mayor and Common Council authorized execution of an Amended Commitment
SchedUle for the 303 West Third Street HUDl08 loan between the City of San Bernardino and the US
Department of Housing and Urban Development (RUD).
On July 24, 2003, Redevelopment Committee voted unanimously to recommend that the Community
Development Commission and Common Council approve an amendment to the Owner Participation
and ED! Loan Agreement with the 303 LLC.
On August 4,2003, the Community Development Commission approved an amendment to the 2000
Owner Participation and ED! Loan Agreement dated September 18, 2000, by and between the Agency
and the 303 LLC.
On August 4, 2003, the Mayor and Common Council approved an amendment to the 2000 CDBG
Program Section 108 Project Development Loan Agreement dated September 18, 2000 by and between
the City and the 303 LLC.
On July 6, 2004, the Redevelopment Committee considered the need to further modify the HUD
Section 108 Loan Agreement and related agreements with the 303 LLC and recommended that the
matter be placed on the agenda for July 19, 2004, for consideration by the Mayor and Conimon
Council and Community Development Commission.
On August 16, 2004, the Community Development Commission adopted a resolution approving the
August 2004 Amendment to the 2000 Owner Participation and ED! Loan Agreement and ED! Loan
Forbearance Agreement by and between the Redevelopment Agency and 303 LLC.
On August 22, 2004, the Mayor and Common Council adopted a resolution approving the August 2004
Memorandum of Amendment to Section 108 Loan Guarantee Agreement with RUD. Also, the Mayor
and Common Council adopted a resolution approving the August 2004 Amendment to the 2000
Community Development Block Grant Program Section 108 Project Development Loan Agreement by
and between the City of San Bernardino and 303 LLC.
P:\Agendas\Comm Dev Commlssion\CDC 2005\05.02-22 303 W Jrd 81..2005 Loan Modification SR.doc
COMMISSION MEETING AGENDA
Meeting Date: 02/2212005
Agenda Item Number: Jfl3{)
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ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
303 WEST TIDRD STREET - LOAN MODIFICATION AND COLLATERAL ASSIGNMENT
AGREEMENT AND CONSENT TO ASSIGNMENT 2000 COMMUNITY DEVELOPMENT
BLOCK GRANT PROGRAM SECTION 108 PROJECT DEVELOPMENT LOAN AGREEMENT
BACKGROUND:
On August 3, 2003, the Common Council and the Community Development Commission were asked to
approve amendments to the HUD 108 Loan Agreement and related agreements with the 303 LLC (the
"Developer"). It was acknowledged at such time that efforts to attract a private user for the 303 W. 3rd
Street building (the "Property") had failed, that negotiations between the County of San Bernardino
("County") and the Developer were proceeding and most likely staff would be back in a year requesting
that the Council and Commission consider a second set of amendments that would provide additional
deferral to the Developer's obligations to the City/Agency to coincide with the construction schedule
ultimately agreed to by the County and the Developer.
On June 29, 2004, the County Board of Supervisors approved a purchase and sale agreement with the
Developer whereby the Developer is to construct the essential core improvements as well as the tenant
improvements required by the County. Upon completion of such improvements the Developer is to sell
the Property to the County to accommodate, in part, the courtroom needs of the Superior Courts. Prior to
this time, the Developer could not proceed with the renovation of the Property until negotiations were
completed and the County was able to specify the needed tenant improvements and decide whether to
lease or purchase the Property. However, as one would expect, during this delay the estimate construction
costs for the core and tenant improvements had increased to $15 million which exceeded the original $8.5
million subordination amount allowed in the HUD Section 108 Loan agreement. Therefore, on August 16,
2004, the Common Council and Commission approved amendments to the HUD 108 Loan Agreement
and related agreements with the Developer and a request of HUD to approve increasing the not to exceed
subordination construction loan amount to $15 million. Four months later, on December 15,2005, HUD
approved the amendment.
CURRENT ISSUE:
I
The Developer has informed the Agency that based on bid estimates the construction amount has been set
at $17 million, thus requiring another amendment to the 108 Agreement and a request to HUD to increase
the not to exceed subordination amount allowed. In the interest of time, it is staff s contention that we can
ill-afford to wait another four months for HUD to respond to an amendment request. Furthermore, Scott
Rodde, Special Agency Financial Consultant, has indicated that it might not be prudent to test HUD' s
patience with another amendment request. Thus, Agency staff has proposed that the Agency payoff the
HUD Section 108 loan effectively taking HUD's place in the transaction.
On January 31, 2005, the Common Council and the Commission authorized Agency staff to borrow
monies from the Agency's Housing Fund to payoff the balance of the HUD Section 108 loan
(approximately $1,740,000) and to prepare the necessary documents to accommodate such action for
consideration at the February 22,2005 Council Meeting. In paying off the Section 108 loan, the Agency
will require the City to assign its collateral in the project to the Agency.
P:\Agcndas\Comm Dev Commilsion\CDC 200S\05-02-22 303 W 3rd St.-200S Loan Modification SR.doc
COMMISSION MEETING AGENDA
Meeting Date: 02/22/2005
Agenda Item Number: ~3()
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Economic Development Agency Staff Report
303 West Third Street - 2005 Loan Modification and Collateral Assignment Agreement
And Consent to Assignment 2000 CDBG Program Section 108
Project development Loan Agreement
Page 2
ENVIRONMENTAL IMPACT:
None.
FISCAL IMPACT:
The 2005 Loan Modification Agreement by and between the City, Agency and 303 LLC calls for the
Agency to loan to the City an amount not to exceed $1,740,000 from the Agency's Low/Mod Housing
Fund. The City agrees to use these funds to payoff the HUD Section 108 loan and the 303 LLC group
agrees to pay to the City the principal and accrued interest when due and payable.
The City in turn will execute the 2005 Agency Loan Agreement in the amount not to exceed $1,740,000
wherein the City agrees to repay the Agency all principal and accrued interest when due and payable.
Interest on the principal amount of the loan shall accrue at the annual rate of three percent (3%) per
annum. Accrued interest shall be due and payable to the City and then passed on to the Agency on each
February 1, May 1, August 1 and November 1, commencing on August 1,2005, and quarterly until the
principal amount of the loan has been paid in to the Agency. The full principal amount of the loan shall
be due and payable upon the earlier of: (i) the transfer of title of the 303 Third Street Parcel by the,
Borrower to the County of San Bernardino, or its nominee, under the terms of the County Purchase
Contract, or (ii) December 31, 2006.
In the event of the occurrence of an Event of Default under the Loan Agreement, or in the event of the
occurrence of an Event of Default under the OP A, or in the event that the Loan in not repaid when due,
then in any such event, the rate of interest which shall be payable by the Borrower under the Borrower
Promissory Note shall be increased to a default rate often percent (10%) per annum~ commencing on the
date of such Event of Default until such time as the Event of Default is cured or the outstanding principal
balance of the Loan, and all accrued and unpaid interest thereon is paid in full.
Additionally, the Borrower will pay to the Agency a loan origination charge of one percent (1 %) of the
outstanding principal balance of the HUD Section 108 loan which is estimated to be $17,400 and a loan
modification administrative charge of Twelve Thousand Dollars ($12,000)
RECOMMENDATION:
That the Community Development Commission and the Mayor and Common Council adopt the attached
Resolutions.
P:\Agendas\Comm Dev Commistion\COC 2005\05-02-22 303 W 3rd 51..2005 Loan ModiftCation SR.doch
COMMISSION MEETING AGENDA
Meeting Date: 02/22/2005
Agenda Item Number: RJIJ
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RESOLUTION NO. ~ ({j) (p1f.
RESOLUTION OF THE MAYOR AND COMMO~ COVNCIL OF THE
CITY OF SAN BER..~ARDINO APPROVING A 2005 LOAN
MODIFICATION AND COLLATERAL ASSIGNMENT AGREEMENT
AND CONSENT TO ASSIGNMENT BY AND AMONG 303 LLC, THE
REDE\'ELOP:\IE~T AGENCY OF THE CITY OF SAN BERNARDINO
A:\'D THE CITY OF SAN BERNARDINO AND APPROVING A 2005
REDEVELOPMENT LOAN AGREEMENT BY AND BETWEEN THE
AGENCY AI\D THE CITY (303 THIRD STREET PROJECT)
WHEREAS, the City of San Bernardino (the "City") and 303, L.L.c., a Californi
limited liability company (the "Borrower") have previously entered into a certain agree men
entitled "'2000 Community Development Block Grant Program Section 108 Project Developmen
Loan Agreement (303 Third Street Project)", dated as of September 18, 2000, as amended (th
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provide a source of funds to support the activities contemplated under the City Section 108 Loa
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Agreement; and
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WHEREAS, as of the date of adoption of this Resolution the outstanding princip
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WHEREAS, the Redevelopment Agency of the City of San Bernardino (,lIe "Agency"
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24 I and the Borrower have previously entered into a certain agreement entitled "2000 Owne
" II Participation and ED! Loan Agreement (J03 Third Street Project)" dated as ~f Septerober 18
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2000, as amended (the "OP A") in support of the acti\'ities contemplated under the City Sectio
o :! 108 Loan Agreement: and
3 WHEREAS, the City Section 108 Loan Agreement, the HUD Section 108 Lo
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Contract") by and between the Borrower and the County of San Bernardino; and
Agreement and the OP A have each been duly amended by the parties thereto prior to the date 0
this Resolution, to reflect changes in circumstances and modifications to the financing of th
"Borrower Improvements (Phase II)" and the "303 Third Street Project", as each of these term
are defined in the City Sectionl 08 Loan Agreement, including the proposed acquisition thereo
by the County of San Bernardino pursuant to the terms and conditions of an agreement entitle
"Agreement for Purchase and Sale of Real Property", dated June 29, 2004 (the "County Purc.has
WHEREAS, as a result of the greater than anticipated costs required to complete th
redevelopment of the Borrower Improvements (Phase II) and the 303 Third Street Project by th
Borrower, the Borrower has requested that the City arrange for the Agency to repay the HU
Section l08 Loan and that in consideration thereof, the Agency accept a collateral assignmen
from the City of all of the "Section l08 Loan Collateral" as this term is defined in the Cit
Section l08 Loan Agreement, as security. for the repayment by the City to the Agency of a 10
of Agency low- and moderate-income housing funds in an amount not to exceed $1,740,000 t
the City under the terms of the 2005 Agency Loan Agreement by and between the City and th
Agency (the ":W05 Agency Loan Agreement"). The City shall use and apply the proceeds ofth
loan made available_tQ it by the Agency under the 2005 Agency Loan Agreement to prepay th
21 HUD Section 108 Loan; and
22 WHEREAS, the City deems it to be in the best interests of the Cit): that the HUD
23 Section l08 Loan be repaid by the City using the proceeds of the loan to be made by the Agency
24 to the City and that the proposed loan of Agency funds to the City for such purposes under the
25 2005 Agency Loan Agreement be secured in favor of the Agency by a collateral assignment of
C) the City Section l08 Loan Agreement, and all security instruments thereunder.
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NOW, THEREFORE. IT IS HEREBY RESOLVED, DETERMINED AND ORDERED
, BY THE MA YOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, AS
3 FOLLOWS:
4
Section I.
The Mayor and Common Council hereby approve the 2005 Lo
Development Agency and special legal counsel to the City.
5
Modification and Collateral Assignment Agreement and Consent to Assignment (the "2005 Lo
\lodification Agreement") by and among the BOITO\\ler, the Agency and the City in the fom
attached hereto as Exhibit "AU. The t>.layor and Executive Director of the Economi
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D.:\'elopment Ag.:ncy are hereby authorized and directed to execute the 2005 Loan Modificatio
9 Agreement on behalf of the City, together with such technical and conforming changes as may
I be appro\'cd by the Mayor upon the recommendation of the Executive Director of the Economi
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Section 2.
The Mayor and Common Council hereby approve the 2005 Agency Lo
Agreement in the form as attached hereto as Exhibit "B". The Mayor and Executive Director 0
I the Economic Development Agency are hereby authorized and directed to execute the 200
i I Agency Lo'an Agreement on behalf of the City, together with such technical and conformin
,I changes as may be approved by the Mayor upon the recommendation of the Executive Directo
II of the Economic Development Agency and special legal counsel to the City.
Section 3.
Subject to the execution by all parties of the 2005 Loan Modificatio
Agreement and the satisfaction of the conditions enumerated in Section 9(b) of the 2005 Lo
\Iodification Agreement, the Mayor and Executive Director of the Economic Developmen
Agency are hereby authorized and directed to prepay the HUD Section 108 Loan using th
proceeds of the 2005 Agency Loan at the earliest feasible time. The Mayor and Exeeunv
Director of the Executive Director of the Economic Development Agency are hereby furthe
authorized to execute the 2005 Collateral Assignment of Section 108 Loan Documents on behal
I of the City in the form as included as an exhibit to the 2005 Loan Modifi~ation Agreement
I
!, together with such technical and conforming changes as may be approved by the Mayor up~n th
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recommendations of the Executive Director of the Economic Development Agency and'specia
:2 legal counsel to the City,
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Section 4,
This Resolution shall have no further force or effect forty five (45) day
4 after its adoption unless prior to such date the 2005 Loan Modification Agreement is' full)
5 executed by all of the parties thereto,
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Section 5,
The City Clerk shall certify to the adoption of this Resolution. Thi
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Resolution shall take effect upon adoption,
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO APPROVING A 2005 .LOAN
MODIFICATION AND COLLATERAL ASSIGNMENT AGREEMENT
AND CONSENT TO ASSIGNMENT BY AND AMONG 303 LLC, THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND THE CITY OF SAN BERNARDINO AND APPROVING A 2005
REDEVELOPMENT LOAN AGREEMENT BY AND BETWEEN THE
AGENCY AND THE CITY (303 THIRD STREET PROJECT)
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
Common Council of the City of San Bernardino at a
meeting thereof, held on the
day of
,2005. by the following vote to wit:
Council Members:
Aves
1'-:aY~
Abstain
Absent
ESTRADA
LONGVILLE
MCGINNIS
DERRY
KELLEY
JOHNSON
~1C CAMMACK
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Rachel G. Clark, City Clerk
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20 The foregoing resolution is hereby approved this
day of
,2005.
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Judith Valles, Mayor
City of San Bernardino
Approved as to form and Legal Content:
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By' ~()~~+ .
Cny Attorney St'. D"f~C'" ANI""~
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Mayor and Common Council Resolution
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2005
LOAN MODIFICATION AND COLLATERAL ASSIGNMENT AGREEMENT
AND
CONSENT TO ASSIGNMENT
2000 COMMUNITY DEVELOPME'NT BLOCK GRANT PROGRAM SECTION 10~
PROJECT DEVELOPMENT LOAN AGREEMENT
(303 Third Street Project)
THIS 2005 LOAN MODIFICA nON AND COLLATERAL ASSIGNMENT
AGREEMENT AND CONSENT TO ASSIGNMENT (the "2005 Loan Modification
Agreement") is dated as of February 22, 2005, and is entered into by and among the City of San
Bernardino, a municipal corporation (the "City"), the Redevelopment Agency of the City of San
Bernardino, a public body corporate and politic (the "Agency"), and 303, L.L.C., a California
limited liability company (the "Borrower"), and is made and executed in light of the facts set
forth in the following recital paragraphs:
RECITALS
The City and the Borrower have previously entered into a certain agreement entitled
":WOO Community Development Block Grant Program Section I 08 Project Development Loan
Agreement (303 Third Street Project)", dated as of June 1,2001, as amended (the "City Section
108 Loan Agreement"), for the purpose of furthering certain interests of the City within the
downtown area of the City of San Bernardino, and the City prior thereto entered into a similar
agreement with the United States Department of Housing and Urban Development ("HUD'')
entitled "Contract for Loan Guaranty Assistance Under Section I 08 of the Housing and
Community Development Act of 1974", as amended, 42 U.S.c. 95308, dated September 26,
2000, as amended (the "HUD Section I 08 Loan Agreement").
The Agency and the Borrower have previously entered into a certain agreement entitled
"2000 O\\ner Participation and EDI Loan Agreement (303 Third Street Project)" dated as of
September 18,2000, as amended (the "OPA").
The City Section 1 08 Loan Agreement, the HOD Section 1 08 Loan Agreement and the
OP A have each been duly amended by the parties thereto prior to the date of this 2005 Loan
Modification Agreement, to reflect changes in circumstances and modifications to the financing
of the "Borrower Improvements (Phase II)" and the "303 Third Street Project", as each of these
tenns are defined in the City Section 108 Loan Agreement, and the proposed.acquisition thereof
by the County of San Bernardino pursuant to the tenns and conditions of an agreement entitled
"Agreement for Purchase and Sale of Real Property", dated June 29, 2004 (the "County Purchase
Contract") by and between the Borrower and the County of San Bernardino.
As of the date of this 2005 Loan Modification Agreement, the outstanding principal '
balance of the HUD Section 10,8 Loan is $1,740,000.
4840-9415-32104
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As a result of the greater than anticipated costs required to complete the redevelopment of
the Borrower Improvements (Phase II) and the 303 Third Street Project by the Borrower, the
Borrower has requested that the City arrange for the Agency to repay the HUD Section 108 Loan
and that in consideration thereof, the Agency accept a collateral assignment from the City of all
of the "Section 108 Loan Collateral" as this term is defined in the City Section 108 Loan
Agreement, as security for the repayment by the City to the Agency of a loan of Agency low-
and moderate-income housing funds in an amount not to exceed $1,740,000 to the City under the
terms. of the 2005 Agency Loan Agreement by and between the City and the Agency (the "2005
Agency Loan Agreement"). The City shall use and apply the proceeds of the loan made
available to it under the 2005 Agency Loan Agreement to prepay the HUD Section 108 Loan.
The Borrower acknowledges that it is not possible to obtain the necessary approvals from HUD
as would be required pursuant to the HUD Section 108 Loan Agreement to allow the Borrower
Improvements (Phase II) to proceed, and for that reason, the Borrower requested the Agency to
provide a loan to the City to repay the existing HUD Section 108 Loan.
The parties to this 2005 Loan Modification Agreement deem it to be in the best interests
of the Borrower, the City and the Agency that the HUD Section 108 Loan be repaid by the City
using the proceeds of the loan to be made by the Agency and that the proposed loan of Agency
funds to the City for such purposes under the 2005 Agency Loan Agreement be secured in favor
of the Agency by a collater!ll assignment of the City Section 108 Loan Agreement, and all
security instruments thereunder.
The Borrower acknowledges that it shaH benefit from the prepayment of the HUD
Section 108 Loan and the collateral assignment of the Section 108 Loan. Collateral to the
Agency, and the related modifications of the terms of the City Section 108 Loan Agreement, and
the OP A as specifically set forth herein as evidenced by the exec\ltion of this 2005 Loan
Modification Agreement by the Borrower to consent to the assignment and the modification of
the terms as hereinafter set forth.
NOW THEREFORE, AND FOR GOOD AND VALUABLE CONSIDERATION, THE
PARTIES ENTER INTO THIS 2005 LOAN MODIFICATION AGREEMENT IN ORDER TO
SATISFY CERTAIN CONDITIONS CONTAINED IN THE APPLICABLE AGREEMENTS
AND CONTRACTS TO WHICH THE PARTIES TO THIS 2005 LOAN MODIFICATION
AGREEMENT ARE BOUND AND TO PROVIDE FOR THE COMPLETION OF THE
BORROWER IMPROVEMENTS (PHASE II) AND THE REDEVELOPMENT OF THE 303
THIRD STREET PROJECT. .
Section 1.
US8l!e of Defined Terms.
(a) To the extent practical, the meaning of defined terms as used in this 2005 Loan
Modification Agreement shall have the same meaning as set forth in the City Section 108 Loan
Agreement and/or the OP A, unless the context of usage of such terms in this 2005 Loan
Modification Agreement shall clearly require otherwise.
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(b) The following defined tenns as set forth in Section 1 of the City Section 108 Loan
Agreement are hereby modified to read as follows:
[and]
".
Parking Lot Parcel. The words "Parking Lot Parcel": (i) prior to the date on
which the conditions of Section 9(b) of the 2005 Loan Modification Agreement
are satisfied, mean and refer to the lands located at the southwest comer of 2nd
Street and Mountain View Avenue in the City, with respect to which the
Borrower and the City have previously entered into an agreement entitled
"Parking Lot Parcel Covenant", dated June 1,2001, and filed for recordation on
June I, 2001, as Recorded Instrument No. 214147 Official Records of the
Recorder of San Bernardino County; and (ii) after the date on which the
conditions of Section 9(b) of the 2005 Loan Modification Agreement are satisfied,
mean and refer to the lands located at the northwest comer of the intersection of
Arrowhead Avenue and 2nd Street in the City (also described elsewhere for
purposes of clarification as the "Fonner Southern California Edison Parcel"), with
respect to which the Borrower, or its assignee, and the City shall jointly execute
and file for recordation an instrument entitled "Replacement Parking Lot
Covenant" as authorized in Section 5 of the Parking Lot Parcel
CovenantlRecorded Instrument No. 214147, Official Records of the Recorder of
San Bernardino County."
Former Southern California Edison Parcel. The words "Former Southern
California Edison Parcel" mean and refer to the lands located at the northwest
comer of the intersection of Arrowhead Avenue and 2nd Street in the City. The
Fonner Southern California Edison Parcel is more particularly described in that
certain proposed real estate purchase and sale agreement by and between the
Southern. California Edison Company and the Borrower (the "EdisoJr ParceI
Purchase and Sale Agreement"). The Fonner Southern California Edison Parcel
is located adjacent to the 303 Third Street Parcel. A copy of the draft of the
Edison Parcel Purchase and Sale Agreement, dated as of February 18,2005, is on
file with the Executive Director of the Economic Development Agency."
LMB Performance Deed of Trust (City"). The words "LMB Perfonnance
Deed of Trust (City)" mean and refer to the perfonnance deed of trust executed by
LM&-Development, LLC, a California limited liability company, in favor afthe
City, which LMB Perfonnance Deed of Trust (City) shall. pledge the lands
described in Recorded Instrument No. 214147 to the City as additional security
for the repayment to the City by the Borrower of the City Section 108 Loan."
Section 2.
Asshmment and Consent.
(a) Subject to the t~rms and conditions of this 2005 Loan Modification Agreement,.
the Agency hereby agrees to provide a loan to the City in a principal amount not to exceed
4840-9415-3216.4
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$1,840,000, which the City shall use and apply solely to repay all sums owed by the City to
HUD under the tenns of the HUD Section 108 Loan Agreement, and in exchange therefore the
City agrees to assign and transfer to the Agency all rights, title and interests that the City may
have in the Section 108 Loan Collateral.
(b) The Borrower, by the execution of this 2005 Loan Modification Agreement,
hereby consents to the 2005 Agency Loan Agreement and the use of the proceeds of the 2005
Agency Loan by the City to prepay the HUD Section 108 Loan, and the Borrower agrees that all
provisions of the City Section 108 Loan Agreement, including such modifications to the City
Section 108 Loan Agreement as set forth in this 1005 Loan Modification Agreement, shall
remain in full force and effect notwithstanding the prepayment of the HUD Section 108 Loan.
(c) Unless specifically modified, amended or deleted by the express provisions of this
1005 Loan Modification Agreement, all of the tenns, provisions and conditions of the Section
108 Agreement shall remain in full force and effect in accordance with the intent of the parties as
expressed herein.
Section 3.
Consent to Assi2nment and Further Assurances and Documents.
(a) The Borrower. hereby approves the fonn of the instrument entitled "2005
Collateral Assignment of Section 108 Loan Documents by the City of San Bernardino to the
Redevelopment Agency of the City of San Bernardino Arising Under a Contract for Loan
Guarantee Assistance under Section 108 of the Housing and Community Development Act of
1974, As Amended, 42 U.S.C. ~5308" (the "2005 Collateral Assignment Agreement") in the
fonn attached hereto as Exhibit "A" and incorporated herein by this reference, together with such
technical changes as may hereafter be approved by the City and the Agency.
(b) The City agrees to execute any and all additional a~~lIT'l1nr.~. assjl:;'''l.~,.ts orany
other documents reasonably requested by the Agency to evidence the assignment to the Agency
of the Section 108 Loan Collateral by the City pursuant to this 2005 Loan Modification
Agreement, including, but not limited to the letters of credit, the promissory note and the deed of
trust as specified in the Section 108 Agreement.
(c) The Borrower agrees to execute any and all additional assurances, assignments or
any other documents reasonably requested by the-City or the Agency to evidence the assignment
to the Agency of the Section 108 Loan Collateral by the City to the Agency pursuant to the 2005
Collateral Assi!:;ullIedt Agreement. upon its. execution by the fforrower,the Cify ana tlieAgenc~
including, but not limited to the letters of credit, the Borrower Section 108 Promissory Note and
the City Deed of Trust, all as specified in the City Section 108 Agreement. .
Section 4. Specific Amendments to City Section 108 Loan A2reement and
Certain Related 303 Third Street Proiect Documents. The tenn "Effective Date of this 2005
Loan Modification Agreement" is defined in Section 9, below. The City Section 108 Loan
Agreement and the corresponding Borrower Section 108 Promissory Note' and the Crty Deed of
Trust are hereby amended by the Borrower and the City to reflect the following changes in the
4840-9415-3216.4
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transaction as between the City and the Borrower as of the "Effective Date of !!tis 2005 Loan
Modification Agreement".
(a) The provisions of Section 3.0(a)(4) of the City Section 108 Loan Agreement shall
not be applicable to the repayment by the City andlor the Agency of the amounts owed by the
City to HUD pursuant to the HUD Section 108 Loan Agreement; and Section 3.0(a)(4) of the
Citv Section 108 Loan Agreement shall continue to be applicable solely to any prepayments of
the" Section 108 Loan that are remitted by the Borrower directly to the City or the Agency in
accordance v.ith this 2005 Loan Modification Agreement.
(b) The Borrower acknowledges that no additional funds shall be disbursed to the
Borrower pursuant to the City Section 108 Agreement except for an amount presently estimated
to be $45,000.00 which shall be transferred from the Funded Interest Reserve Fund to the City
for the repayment of the HUD Section 108 Loan. The precise amount of the sum as shall be
transferred from the Funded Interest Reserve Fund to the City upon the satisfaction of the
conditions set forth in Section 9(b) shall be subject to a mutual verification and final accounting
of the City and the Borrower.
(c) The principal repayment schedule for the Section 108 Loan set forth in Section
5.0(a) of the Section 108 Loan Agreement shall not be applicable as to the Borrower and the
Agency pursuant to this 2005 Loan Modification Agreement. In lieu thereof, the full outstanding
principal balance of the Section 108 Loan shall be due and payable upon the earlier to occur of:
(i) the transfer of title of the 303 Third Street Parcel by the Borrower to the County of San
Bernardino,' or its nominee, under the terms of the County Purchase Contract, or (ii) December
31,2006.
(d) Interest on the principal amount of the Section 108 Loan shall accrue for the
benefit of the Agency commencing on the Effective Date of the 2005 Loan Modification
Agreement at the annual rate of three percent (3%) per annum. Such accrued interest shall be
due and payable by the Borrower to the City on each February 1, May 1, August 1 and
November 1, commencing on August I, 2005, and quarterly, thereafter, until the principal
amount of the Section 108 Loan has been repaid in full to the City. Such interest shall be
calculated based upon the actual number of days for which any principal balance of the City
Section 108 Loan was then outstanding during each such quarterly period.
Notwithstanding any other provision of the City Section 108 Loan Agreement or the
Borrower Section 108 Promissory Note to the contrary, in the event of the occurrence of an
Event of Default under the City Section 108 Loan Agreement, or in the event of the occurrence
of an Event of Default under the OP A, or in the event that the City Section 108 Loan is not
repaid when due, then in any such event, the rate of interest which shall be payable by the
Borrower under the Borrower Section 108 Promissory Note shall be increased to a default rate of
ten percent (10%) per annum, commenciFlg on the date of such Event of Default until such time
as the Event of Default is cured or the outstanding principal balance of the City Section 108
Loan, and all accrued and unpaid interest thereon is paid in full.
./840.9415-32164
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(e) The City shall assign to the Agency the letters of credit as are required to be
provided by certain individuals of the Borrower in accordance with the City Section 108
Agreement, and, if necessary, the City may retain such letterS of credit but the City agrees to
present such letters of credit for payment and to ,seek any extensions or modifications thereto as
may be requested by the Agency if it is deemed advisable for the letters of credit to remain in the
name of the City. The Borrower agrees that the individuals of the Borrower who have obtained
such letters of credit shall cooperate with the City and toe Agency to assure that the Section 108
Loan security as previously made available to the City in the form of the letters of credit shall
continue to be available for the benefit of the City and the Agency in accordance with this 2005
Loan Modification Agreement.
(f) Subject to the satisfaction of the conditions set forth in Section 9(b) of the 2005
Loan Modification Agreement, the City hereby agrees to execute a quitclaim deed in favor of the
Borrower, releasing the interest of the City in the Parking Lot Parcel under the terms of the
Parking Lot Covenant in exchange for the Borrower, or its assignee under the Edison Parcel
Purchase and Sale Agreement, executing the Replacement Parking Lot Covenant which shall
substitute the lands described in Recorded Instrument No. 214147 for the lands described in the
Edison Parcel Purchase and Sale Agreement. The form of the Replacement Parking Lot
Covenant shall be substantially similar in the form to the Parking Lot Covenant (as provided in
Section 5 of the Parking Lot Covenant), except that the lands subject to the Replacement Parking
Lot Covenant shall be the Former Southern California Edison Parcel. The Mayor and Executive
Director of the Economic Development Agency are hereby authorized and directed to execute
the final form .of the Replacement Parking Lot Covenant, together with such technical and
conforming changes as may be recommended by the Executive Director of the Economic
Development Agency and City Attorney concurrently upon the satisfaction of the conditions set
forth in Section 9(b) of this 2005 Loan Modification Agreement.
(g) Subject to the satisfaction of the conditions set forth in Section 9(b) of this 2005
Loan Modification Agreement, the City hereby agrees to execute and deliver for recordation a
partial release and reconveyance of its security interest in the Parking Lot Parcel under the terms
of the City Deed of Trust. The Mayor and the Executive Director of the Economic Development
Agency are hereby authorized to execute such an instrument in the form as approved by the
Executive Director of the Economic Development Agency in consultation with the City Attorney
(h) The City and the Agency each agree to subordinate their respective security
interests under the City Deed of Trust, and any of the other Section 108 Loan Collateral
(excluding however from such subordination, the letters of credit and the Borrower Guaranty) to
any construction financing from a commercial lender that is equal to not more than $17,500,000
for the financings of the improvements to the 303 Third Street Project as required by the County
of San Bernardino pursuant to the County Purchase Contract. The provisions of Section 15.0 of
the City Section 108 Loan Agreement are hereby deleted and neither the City or the Agency shall
subordinate. their respective security interests in the City Deed of Trust or any of the other
Section 108 Loan Collateral to any other financing of the Borrower as otherwise described in
Section 15.0 of the City Section 108 Loan Agreement.
4840-9415-3216.4
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(i) On the Effective Date, ~II funds as may then be held by First American Title
Insurance Company under the Fiscal Agent Agreement shall be paid to the City for the account
of the Borrower, and the Borrower an4 the City shall jointly execute a notice of termination of
the Fiscal Agent Agreement.
(j) All prior amendments to the City Section 108 Agreement shall remain in' full
force and effect unless specifically modified by this 2005 Loan Modification Agreement.
. Section 5. Soecific Amendments to OPA. Subject to the terms and conditions of
this 2005 Loan Modification Agreement, the OP A, as previously amended, is hereby further
amended by the Borrower and the Agency to the extent as set forth below.
(a) The ED! Loan together with the ED! Loan Promissory Note and the EDI Loan
Deed of Trust as provided in Section 4 of the OP A shall be modified to have a maturity date of
the earlier to occur of: (i) the date of the transfer of title for the 303 Third Street Parcel by the
Borrower to the County of San Bernardino or its nominee under the terms of the County
Purchase Contract; or (ii) December 31, 2006.
(b) Section 5 of the 2004 Amendment to the OP A shall be modified to reflect the date
upon which the Participation Fee shall be due and payable to be the earlier to occur of: (i) the
date of the transfer of title for the 303 Third Street Parcel from the Borrower to the County of
San Bernardino; or (ii) December 31, 2006.
(c) The ED! Promissory Loan Note, the EDI Loan Performance Deed of Trust and
the Notice of Memorandum of Agreement shall be modified to reflect all changes as required-by
this 2005 Loan Modification Agreement, and the Borrower shall cooperate with the Agency to
execute any and all documents reasonably required by the Agency to implement the provisions
of this 2005 Loan Modification Agreement.
(d) Subject to the satisfaction of the conditions of Section 9(b) of the 2005 Loan
Modification Agreement, the Agency hereby agrees to execute and deliver for recordation a
partial release and reconveyance of its security interest in the Parking Lot Parcel under the terms
oftl1e ED! Loan Performance Deed of Trust and the Notice of memorandum of Agreement. The
Chair of the Community Development Commission of the City of San Bernardino and the
Executive Director of the Agency are hereby authorized to execute such instruments of partial
release in the form as shall be approved by the Executive Director of the Agency and Agency
Counsel.
(e) All prior amendments to the OPA shall remain in full force and effect unless
specifically modified by this 2005 Loan Modification Agreement.
Section 6.
Reoresentations of the Parties.
(a) The City represents and warrants to the Agency that it is not aware of any default
on its part nor has any notice of any default by the City either under the HUD Section 108 Loan
4840-9415-32164
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Agreement or the City Section I 08 Loan Agreement, nor has the City failed to perform any duty
or other obligation required of the City pursuant to either of said agreements.
(b) The Borrower represents and wmants to the Agency that it is not aware of any
default on its part nor has any notice of any default by the Borrower under the City Section 108
Loan Agreement nor has the Borrower failed to perform any duty or other obligation required of
the Borrower pursuant to the City Section 108 Loan Agreement.
(c) The Borrower represents and warrants to the City and the Agency that it is not
aware of any default on its part, nor has any notice of default been issued under the Mezzanine
Financing.
(d) The Borrower represents and warrants to the City and the Agency that it is not
aware of any default on its part nor has any notice of default been issued under the County
Purchase Contract and that the County Purchase Contract is in full force and effect and is
enforceable in accordance with its terms.
(e) The Borrower represents and warrants to the City and the Agency that it is aware
of no basis on which the makers of the Borrower Guaranties, or any of them, may assert any
defense against the City or the Agency to the payment of such Borrower Guaranties upon proper
presentation of demand therecifby the City or the Agency, as applicable, and the Borrower shall
cause the makers of the Borrower Guaranties, and each of them, to execute and deliver to the
City and the Agency the Affirmation of Guaranty in the form attached hereto as Exhibit "B" and
incorporated hereirr by this reference.
Section 7. Closin2 and Fundin2 of DUD Section 108 Loan Repavment. The
parties agree that the City and the Agency shall establish an escrow to be held at a location and
by a person selected by the Agency for the administration of the repayment of the HUD Section
108 Loan and the acceptance and recordation of all documents required pursuant to this 2005
Loan Modification Agreement. ' The 2005 Collateral. Assignment Agreement shall be recorded
against the 303 Third Street Property concurrently upon the repayment in full of the HUD
Section 108 Loan to provide notice to all persons and lenders regarding the agreements and
commitments of the parties hereto.
Section 8. Further Representations and Warranties of Borrower. The
undersigned individuals on behalf of the Borrower represent and warrant that the Borrower has
taken: all requisite, actions and has- obtained all necessayy: approvals to cause this 2005 Loan
Modification Agreement to be executed and delivered and that the letters of credit as required by
the Section 108 Agreement shall continue to be provided to the Agency either directly or
indirectly through the City for the benefit of the Agency.
Section 9. Effectin Date and Listin2 of Applicable Conditions to Fundin2 of
DUD Section 108 Loan Repavment.
4840-9415-3216,4
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(a) This 2005 Loan Modification Agreement shall take effect upon execution of all
parties hereto. It is recognized by the Borrower that the execution of this 2005 Loan
Modification Agreement by the City is subject to the approval of the Mayor and Common
Council of the City at a duly noticed an~ held public meeting and the execution of this 2005
Loan Modification Agreement by the Agency is subject to the approval of the Community
Development Commission of the City of San Bernardino at a duly noticed and held public
meeting.
(b) . The Effective Date of this 2005 Loan Modification Agreement shall occur on the
date when each of the following conditions has been satisfied:
(i) the 2005 Loan Modification Agreement has been fully executed by the parties:
(ii) the Borrower has provided the City and the Agency with appropriate evidence of
comprehensive general liability insurance coverage as required under the City
Section 108 Loan Agreement and the OP A;
(iii) the City and the Agency have each taken appropriate affirmed action to approve
the 2005 Agency Loan Agreement;
(iv) the City has obtained an appr.opriate update of its lender's policy of title insurance
insuring its security interest in the 303 Third Street Property, including the
instrument describe below in (viii), in form reasonably acceptable to-the City;
(v) the Borrower has delivered an approving opinion ofits legal counsel in form
reasonably acceptable to the City and the Agency to the effect that the Borrower
has taken all necessary action to enter into this 2005 Loan Modification
Agreement and that the City Section 108 Loan Agreement and the OP A, as
modified by this 2005 Loan Modification Agreement, when fully executed by the
parties shall be enforceable in accordance with its terms;
(vi) the Borrower has caused to be delivered an approving legal opinion of legal
counsel to LMB Development, LLC, in a form reasonably acceptable to the City
that LMB Development, LLC, has taken all necessary action to execute the LMB
Performance Deed of Trust (City) pledging the Parking Lot Parcel as additional
security to the City for repayment of the City Section 108 Loan by the Borrower
and that such LMB Performance Deed of Trust, when executed anddclivc:tatby
LMB" D"evefopment, LLC, to the City shall be enforceable in accordance with its
terms;
(vii) the Edison Parcel Purchase and Sale Agreement has been fully executed by the
parties thereto, and is enfor~eable in accordance with its terms; .
(viii) the- Borrower has executed in recordable fomr the Replacement Parking.. Lot
Covenant and such instrument shall be recorded against the Former Southern
4840.Q4IS-3216.4
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(ix)
(x)
(xi)
(xii)
(xiii)
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California Edison Parcel concurrently with the other documents described in this
Section 9(b);
the City has executed in recordable form its release of the Parking Lot Covenant
in consideration for the recordation of the Replacement Parking Lot Covenant;
the City has executed its partial release. and reconveyance of the Parking Lot
Covenant from the City Deed of Trust;
the Agency has executed its partial release and reconveyance of the Parking Lot
Parcel from the ED! Loan Performance Deed of Trust and the Notice of
Memorandum of Agreement;
the Borrower has caused LMB Development, LLC, to deliver its Related
Borrower Guaranty to the City in a form approved by the City;
the Borrower has caused LMB Development, LLC, to execute in recordable form
the LMB Performance Deed of Trust in a form acceptable to the City. Such LMB
Performance Deed of Trust may be subordinate to the security interest, if any, of
the Construction Lender in the Parking Lot Parcel on the same terms and
conditions set forth in Section 1.40 of the City Section 108 Loan Agreement;
(xiv) if requested by the City, LMB Development, LLC, shall have executed an
acknowledgment of its consent to a security assigrunent by the City in favor of the
Agency of the City's security interest in the Related Borrower Guaranty in a form
reasonably acceptable to the City and the Agency;
(xv) the Borrower has delivered a fully executed form of the Affirmation of Personal
Guaranty;
(xvi) there shall be no default under the County Purchase Contract and the County shall
have waived its right under the County Purchase Contract to terminate the County
Purchase Contract, and the Borrower shall have provided the City and the Agency
with \'!ritten evidence of such County waiver in a form reasonably satisfactory to
the Executive Director of the Agency;
(xvii) the Borrower has paid in immediate funds to the Agency the following sums:
~1l4.U.~ 15.3216,4
2/15/05 Jmm
(A) a loan origination charge of one percent (1 %) of the outstanding principal
balance' of the HUD Section 108 Loan as of the day immediately
preceding the Effective Date of the 2005 Loan Modification Agreement;
and
(B) a loan modification administrative charge. of Twelve Thousand Dollars
($12,000);
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(xviii) the Borrower shall have paid the City all accrued and unpaid interest under the
Borrower Section 108 Promissory Note through the Effective Date;
(xix) the parties have executed all ancillary or related documents as may be reasonably
requested by the City, the Agency or HUD;
(xx) the proceeds of the 2005 Agency Loan, together with the funds transferred to the
City by the Borrower under Section 4(b) and the funds payable by the Borrower
to the City under Section 9(b) (ix), are disbursed or collected for the account of
the City in immediate funds to pay in full the principal balance and all accrued
and unpaid interest due to HUD as of the Effective Date under the HlrD Section
108 Loan.
4840-9415-3216,,4
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IN WITNESS \\'HEREOF, the parties hereto have duly executed this 2005 Loan
Modification Agreement as evidenced by the signatures of their members and officers as of the
dates which appear next to such signatures. This 2005 Loan'Modification Agreement may be
executed in counterparts and when fully executed by the parties, each such counterpart shall be
deemed to be one original instrument. .
Date:
APPROVED AS TO FORM:
BY:~
City Attorney
CITY
City of San Bernardino
By:
Judith Valles
Mayor
By:
Rachel G. Clark
City Clerk
Date:
APPROVED AS TO FOR1\1:
By:
Attorneys for Borrower
48..0.9.. 1 5.3Z16.ol
2:'15,05 jmm
303, L.L.c., a California limited liability company
By:
Martin A. Matich, Manager
By: CCJ, Inc., a California corporation, Manager
By:
J. Kevin Bronk, its P'resident
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Date:
APPROVED AS TO FOR.t\1:
4840-9415-3110.4
1115/05 jmm
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AGENCY
Redevelopment Agency of the City
of San Bernardino
By:
Judith Valles
Chair of the . Community Development
Commission of the City of San Bernardino
By:
Gary Van Osdel
Executive Director
13
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Exhibit "A"
to
2005 Loan Modification
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RECORDING REQUESTED AND
WHEN RECORDED MAIL TO:
Redevelopment Agency of the
City of San Bernardino
201 North "E" Street, Suite 301
San Bernardino. California 92401
(Space Above Line For Use By Recorder)
Recording Fee Exempt Pursuant to Government Code Section 6103
2005
COLLATERAL ASSIGNMENT OF SECTION 108 LOAN DOCUMENTS
BY THE CITY OF SAN BERNARDINO TO THE REDEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO ARISING UNDER A CONTRACT FOR
LOAN GUARANTEE ASSISTANCE UNDER SECTION 108 OF THE HOUSING AND
COMMUNITY DEVELOPMENT ACT OF 1974, AS AMENDED, 42 U.S.c. ~5308
(Former BUD Section 108 Loan Contract No. B-94-MC-06-0539-A)
THIS 2005 COLLATERAL ASSIGNMENT OF SECTION 108 LOAN
DOCUMENTS BY THE CITY OF SAN BERNARDINO TO THE REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO ARISING UNDER A CONTRACT FOR
LOAN GUARANTEE ASSISTANCE UNDER SECTION 108 OF THE HOUSING AND
COMMUNITY DEVELOPMENT ACT OF 1974, AS AMENDED, 42 U.S.C. ~5308 (the "2005
Collateral Assignment Agreement") is dated as of February 22, 2005, by the City of San
Bernardino, a municipal corporation (the "City") in favor of the Redevelopment Agency of the
City of San Bernardino (the "Agency").
RECITALS
A. The Secretary of Housing and Urban Development (the "Secretary of
HUD") and the City were previously parties to that certain Contract For Loan Guarantee
Assistance dated as of September 26, ::WOO, as amended by First Amendment To Contract For
Loan Guarantee Assistance, dated March 5, 2001, as further amended by an instrument dated as
of July I, 2003, and as further amended by an instriIment, dated as of August 16, 2004
(collectively, the original contract by and between the City and HUD, together with all of the
amendments, are referred to as the "HUD Section 1 08 Loan Contract") pursuant to which the
City was authorized to loan up to One Million Eight Hundred Forty Thousand Dollars
(S I ,840,000.00) of Community Development Block Grant Program Section 108 monies to 303,
L.L.c.. a California limited liability company (the "Borrower") in connection with the
development of that community development project referred to as the "303 Third Street
Project".
~830-9341-84962
2-i/05 jmm _
PAgtndou",.'\'senda Amh~hlncnts'Exhibi1S'.200S"'OS.o2-2: JOJ lLC.200S Collaleral Msisnmcnl (E1lhibn A 10 2005 Loan ~'od) doc
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B. The City has used the proceeds of the loan made by the Secretary of HUD
to the City under the HUD Section 108 Loan Contract (the "HUD Section I 08 Loan") to
originate a' $1,840,000 loan by the City to the Borrower (the "City Section 108 Loan") under the
terms of that certain loan agreement entitled "2000 Community Development Block Grant
Program Section 108 Project Development Loan Agreement (303 Third Street Project), dated as
of September 18,2000, as amended (the "City Section 108 Loan Agreement") by and between
the City and the Borrower.
, C. The Borrower intends to proceed with the completion of the "Borrower
Improvements Phase 11'", as this term is defined in the City Section 108 Loan Agreement, and to
install certain improvements, and thereafter transfer title in the completed "303 Third Street
Project" as this term is defined in the City Section 108 Loan Agreement, to the County of San
Bernardino, in accordance with the terms of that agreement entitled "Agreement for Purchase
and Sale of Real Property", dated as of June 29, 2004 (the "County Purchase Contnict") by and
between the Borrower and the County of San Bernardino.
D. In order to complete the 303 Third Street Project the Borrower has
requested that the City pro\'ide further accommodation to the Borrower and the Borrower has
requested that the City approve a further amendment to the City Section 108 Loan Agreement
which would authorize the Borrower to obtain senior construction loan financing for the 303
Third Street Project in an original principal senior construction loan amount not to exceed
Seventeen r-.1illion Five Hundred Thousand Dollars ($17,500,000),
E. In order to accommodate the request of the Borrower relating to the
proposed $17,500,000 senior construction loan for the completion of the 303 Third Street Project
and the satisfaction of the Borrower's obligations under the County Purchase Contract, the City
has made arrangements with the Agency for the Agency to prepay the HUD Section 108 Loan in
full, in consideration for the collateral assignment by the City of the "2005 Section 108 Assigned
Collateral Documents", described in Section 1 of this collateral assignment of Section 108 Loan
Docwnents.
NOW, THEREFORE, WITH REFERENCE TO THE ABOVE RECITALS AND
IN RELIANCE THEREON, AND FOR SUCH OTHER GOOD AND VALUABLE
CONSIDER..A. nON THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY
ACKNOWLEDGED, THE CITY AGREES AS FOLLOWS:
Section 1,
(a) This 2005 Collateral Assignment Agreement is being executed and
delivered by the parties in furtherance of the terms and conditions of that certain agreement
entitled "2005 Loan Moditication and Collateral Assignment Agreement and Consent to
Assignment'", dated as of February 22, 2005, by and among the Borrower, the City and the
Agency,
(b) This 2005 Collateral Assignment Agreement affects the real property
more particularly described in Exhibit "A" attached hereto.
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(c) The Borrov.:er has previously delivered to the City the City Section 108
Loan Collateral Documents, including without limitation the following: .
(J) Loan Agreement, including modification letters, dated May 24, 200 I, and
May 31, 2001 and amended dated as ofJuly 1,2003, and August 16,2004
(the "City Section 108 Loan Agreement");
(2) $1,840,000.00 Promissory Note Payable To A Public Entity (the
"Borrov,"er Section 108 Promissory Note");
(3) $1,840,000.00 Deed of Trust, Security Agreement, Assignment of Leases
and Rents and Fixture Filing (the "City Deed of Trust");
(-l) Environmental Indemnity;
{5) Assignment of Interest in Contracts and Permits;
(6) Personal Guarantee (Matich, Lemann and Brunk, as individuals, jointly
and severally);
(7) $100,000 U.S. Bank National Association Irrevocable Standby Letter of
Credit Number SLCPPDXOI064;
(8)
$100,000.00 U.S. Bank National Association Irrevocable Standby Letter
of Credit Number SLCPPDXOI065;
(9) 2005 Affirmation of Personal Guaranty"
A fully executed original copy of each of the documents identified above is
hereby delivered to the Agency concurrently with the execution and recordation of this 2005
Collateral Assignment. Collectively, the documents described above and as hereby delivered to
the Agency are referred to as the "2005 Section 108 Assigned Collateral Documents". True and
correct copies of each of the 2005 Section 108 Assigned Collateral Documents are also on file
with the City as official records of the City.
Section 2. The City hereby grants, assigns and transfers to the Agency as
collateral fortIre- payment by the City of the obligation as arise in favor of the Agency under the
2005 Agency Loan Agreement as approved by City Council Resolution No. ,
dated February 22, 2005, each of the 2005 Section 108 Assigned Collateral Documents. The
City intends and declares that by this 2005 Collateral Assignment Agreement. the Agency, and
its successors and assigns, shall have the rights and powers and shall be entitled to all of the
benefits under the 2005 Section 108 Assigned Collateral Documents, to the same degree and
extent as though the 2005 Section 108 Assigned Collateral Documents, and each of them, had
been originally made between the- Borrower and the-Agency.
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Section 3. For so long as no breach by the City has occurred under the 2005
Agency Loan Agreement as approved by City Council Resolution No. , the City
reserves the right to make necessary or appropriate amendments and/or revisions to certain of the
2005 Section I 08 As~igned Collateral Documents identified below; provided, however, that the
Citv shalI not make or agree to any amendment or revision to the instruments identified below
which in the opinion of legal counsel acceptabfe to the Agency materially alters the term or
materialIy diminishes the value of any of such instruments as security for the repayment by the
City to the Agency of the Agency's loan to the City urider the terms of the 2005 Agency Loan
Agreement:
City Section 108 Loan Agreement;
Borrower Section 108 Promissory Note;
City Deed of Trust;
Personal Guaranty;
Assignment of Interests in Contracts and Permits
[including without limitation modifications to Exhibit "C" of the
Assignment of Interests in Contracts and Permits: County Purchase
Contract]
Section 4. The City represents and warrants to the Agency that the City is
(and as to any other 2005 Section 108 Assigned Collateral Documents acquired hereafter, the
City shall be) and remain the sole owner of the 2005 Section 108 Assigned Collateral
Documents, excepting only the security interest of the Agency therein as granted by this 2005
Collateral Assignment Agreement, and further excepting the senior' security interest of the
"Construction Lender", in certain of the 2005 Section 108 Assigned Collateral Documents, as
may hereafter arise under Section 14.0 of the City Section 108 Loan Agreement.
Section 5. This 2005 CoIlateral Assignment Agreement shall be a conditional
assignment of the 2005 Section 108 Assigned Collateral Documents, and the Agency shall not
exercise its rights hereunder unless the Agency shall first give and serve upon the City written
notice that there has been a default under the 2005 Agency Loan Agreement beyond any
applicable cure period.. The City expressly acknowledges and agrees that the Agency may
exercise its rights hereunder with or without: (i) taking possession of the property described in
the City Deed of Trust; (ii) initiating foreclosure proceedings with respect to the 2005 Section
108 Assigned Collateral Documents; or (iii) taking any other action with respect to the. 2005
Section 108 Assigned Collateral Documents, including without limitation the receipt of the
proceeds of either of the Borrov.:er letters of credit as assigned by the City to the Agency.
Section 6. Upon the delivery to the City by the Agency of the notice of
default described in Section 5, the City shall not have any further interest in or with respect to the
2005 Section 108 Assigned Collateral Documents, or any of them; provided however, that if the
() City: (i) repays in fun its obllgation to the Agency under the 2005 Agency Loan Agreement; or
';830-9341.8';962
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(ii) if the Agency elects to permit the City to cure a default under the 2005 Agency Loan
Agreement, then in either such case, the rights and interests of the City under the 2005 Section
108 Assigned Collateral Documents, and each of them, shall be reinstated.
Section 7. In the event of the occurrence of any default by the Borrower
under the 2005 Section 108 Assigned Collateral Documents, the City shall have the right, but not
the obligation, upon \\Titten notice to the Agency, to cure any such default of the Borrower "and
take anv action under the 2005 Section 108 Assigned Collateral Documents to preserve the
City's rights under such 2005 Section 108 Assigned Collateral Documents.
Section 8. The City agrees to provide prompt written notice to the Agency of
any default by the Borrower under any of the 2005 Section 108 Assigned Collateral Documents.
Section 9. The City agrees that the Agency shall not be obligated to perform
or discharge any obligation, duty or liability under the 2005 Section 108 Assigned Collateral
Documents by reason of this 2005 Collateral Assignment Agreement until such time as the
Agency may exercise its election as provided in Section 5 hereof.
Section 10. The City agrees not to do, or sutTer to be done, any of the
following acts without obtaining the prior written consent of the Agency: (i) cancel any of the
:W05 Section 108 Assigned Collateral Documents; (ii) surrender of the 2005 Section 108
Assigned Collateral Documents; (iii) waive or forgive any 2005 Section 108 Assigned Collateral
Documents: (h') further assign any 2005 Section 108 Assigned Collateral Documents; (v) modify
any of the 2005 Section 108 Assigned Collateral Documents, except as set forth in Section 3,
without the prior consent of the Agency which consent shall not be unreasonably withheld,
conditioned or denied: or (vi) fail to perform any obligation of the City under the 2005 Section
108 Assigned Collateral Documents.
Section 11. All notices. requests, demands, and other communications under
this 2005 Collateral Assignment Agreement shall be in writing and shall be deemed to have been
duly given (a) on the date of service if served personally to the party to whom notice is to be
given. (b) on the day of transmission if sent by facsimile transmission to the facsimile number
given below, and telephonic confirmation or receipt is obtained promptly after completion of
transmission, (c) on the day after delivery to Federal Express or similar overnight courier service
or the Express Mail service maintained by the United States Postal Service, or (d) on the fifth
day after mailing, if mailed to the party to whom notice is to be given, by first class mail,
registered or certified, postage prepaid, and properly addressed, return receipt requested, to the
party as follows:
If to City:
Office of the Mayor
City of San Bernardino
300 North ooD" Street
San Bernardino, CA 924 I 8
Tel: 909-384-5133
Fax: 909-384-5067
~830-9341-84961
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If to the Agency:
Economic Development Agency of the
City of San Bernardino
201 North "E" Street, Suite 301
San Bernardino, CA 9240 I
Tel: 909-663-1044
Fax: 909-888-9413
Section 12. From and after a default by the City under the 2005 Agency Loan
Agreement, the City hereby irrevocably appoints the Agency as the City's attorney-in-fact to
exen;ise any and all of the City's rights in and or under any of the 2005 Section 108 Assigned
Collateral Documents, to give appropriate receipts, releases and satisfactions on behalf of the
City in connection with the City's rights or delegations under any of the 2005 Section 108
Assigned Collateral Documents, and to do any and all other acts in the name of the City or in its
own name with the same force and effect as if this 2005 Collateral Assignment Agreement had
not been made. This power of attorney is coupled with an interest.
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THIS 2005 COLLATERAL ASSIGNMENT OF BORROWER SECTION 108
LOAN DOCUMENTS BY THE CITY OF SAN BER..~ARDINO TO THE REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO ARISING UNDER A CONTRACT FOR
LOAN GUARANTEE ASSISTANCE TINDER SECTION 108 OF THE HOUSING AND
COMMUNITY DEVELOPMENT ACT OF 1974, AS AMENDED, 42 U.S.C. ~5308 is dated as
of February 22, 2005, and is executed on behalf of the City by its authorized officers whose
signatures appear below.
CITY
City of San Bernardino, California
Date:
By:
Judith Valles, Mayor
ATTEST:
Rachel G. Clark, City Clerk
303, L.L.C.. a California limited liability company
hereby consents to the foregoing terms of the 2005
Collateral Assignment of Borrower Documents
Agreement
Date:
By:
Martin A. Matich, Manager -.
-- and -
CJJ, Inc., a California corporation, manager
By:
J, Kevin Brunk, its President
(NOTARY ACKNOWLEDGEMENT
OF ALL SIGNATURES ATTACHED}
4M30-9341-8496 2
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ACCEPTANCE OF DELIVERY OF BORROWER
SECTION 108 LOAt'J COLLATERAL
AGENCY
Redevelopment Agency of the City of San
Bernardino .
Date:
By:
Executive Director
APPROVED AS TO FORM: ""
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EXHIBIT "A"
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PARCEL NO.1:
THE WEST 22 FEET OF LOT 7, BLOCk 14, CITY OF SAN BERNARDINO, TN THE CITY OF SAN
BBRNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALlPORNlA. AS PEa PLAT
RECORDED IN BOOK 7 OF MAPS. PAGE(S) 1, RECORDS OF. SAID COUNTY.
EXCEPTING THE NORTH 35 FEET THEREOF.
ALSO EXCEPTING RIGHT OF WAY OF SAN BERNARDINO, ARROWHEAD AND WATERMAN
RAILWAY CO;, IF SAME BE FOUND TO INCLUDE ANY PORTION OF SAID LOT 7.
PARCEL NO.2:
THAT PORTION OF LOT 6, BLOCK 14, CITY OF SAN BERNARDINO, IN THE CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CAllfORNIA. AS PER PLAT
RECORDED IN BOOK 7 OF MAPS, PAGE(S) I, RECORDS OF SAID COUNTY. DESCRIBED AS ~
FOllOWS;
BEGINNING AT A POINT 22 FEET EAST OF THE NORTHWEST CORNER OF LDT 6; THENCE
SOUTH 148-112 FEET, MORE OR LESS, TO THE SOUTH LINE OF LOT 6; THENCE EAST ALONG
THE SOU'l1i LINE. OF SAID LOT 6, SJ.87 FEET, MORE OR LESS. TO THE WEST UNE OF LAND
BELONGING TO THE SAN BERNARDINO LODGE NO. 140 OF THE INDEPENDENT ORDER. OF ODD
FELLOWS AS PER DEED RECORDED IN BOOK 'U' OF DEEDS, PAGE 415; THENCE NORTH 148-
1/2, MORE OR LESS, TO THE NORTH UNE OF LOT 6: THENCE WEST 51.87 FEET, MORE OR.
LESS, TO TIlE POINT OF BEGINNING.
PARCEL NO.3:
THAT PORTION OF LOT 6, BLOCK 14, OF,THE CITY OF SAN BElNARDINO. IN THE em OF SAN
BER..'lARDINO, COUNTY OF SAN' BERNARDINO, STATE OF CA.I.JFORNIA. AS PER PLAT
RECORDED IN BOOK 7 OF M~S. PAGE{S) I, RECORDS OF SAID COUNTY, DESCRIBED AS
FOLLOWS:
BEGINNING AT A POINT 229.23 FEET WEST OF A POINT 41.25 FEET SOUTH OF THE
, INTERSECTION OF TIlE CENTER LINE OF .C" STREET AND THIRD STREET OF SAID CITY:
THENCE SOUTH 148.54 FEET; THENCE WEST 37.75 FEET; THENCE NORTH 148.54 FEET; THENCE
EAST 37.75 FEET TO THE POINT OF BEGINNING.
PARCEL NO.4
PARCEL A:
ALL THAT pORTION OF LOTS 6 AND 7. IN BLOCK 14. CITY OF SAN BERNARDINO, IN THE CITY
OF SAN BERNARDINO. COUNTY OF SAN BERNARDINO, STATE OF CAlJFORNIA. AS PER PLAT
RECORDED IN BOOK 7 OF MAPS, PAGE(S) I. RECORDS OF SAID COUNTY, DESCRIBED AS
FOllOWS:
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COMMENCING AT A POINT 87 FEET WEST AND 100.70 PEET SOUlll OF TIlE NQRTHEAST
COaNER OF SAID LOT 6; THENCE WEST 100.83 fEET, PARALLEL WITH THE NORTH UN! OF
SAID LOT 6; THENCE SOUTH 47.14 FEET. PAIlALLEL WITH THE EAST LINE OF SAID LOT 6;
TJfENCE WEST ALONG THE NOltTH LINE OF LOT 7; 85.35 FEET TO A POINT WHICH IS 25.5
FEliT EAST OF THE NORTIiWEST CORNER OF SAID LOT 7; nlENCE SmITH PARALLEL WITH
'IlIE WEST LINE OF SAID LOT. 35 FEET: 11IENCE WESr 3.S FEET; nlENCE SOUTH PAV" 1=1
WIn! THE WBST LINE OF SAID LOT. 88.54 FEET TO A POINT 2S PEET NORTH OF THE somH'
lJNE OF SAID LOT: THENCE EAST PARAI.LEL WITH mE SOUTH LINE OF SAID LOT. 190.45
12m TO A POINT WHICH IS 81 FEET WEST OF THE EAST UNE OF SAID LOT: THENCE NORTH
PARALLEL WITH THE EAST UN'E. OF LOTS 1 AND 6. 171.22 PBET, MORE OR LESS. TO nm
POINT OF BEGINNING. .
PARCEL B:
A PERPETUAL RIGHT OF WAY FOR PASSAGE OF FOOT PASSENGERS. TEAMS. AUTOMOBILES.
TRUCKS AJ'o.'D OTHER VEHICLES OVER AND ACROSS THE FOLLOWING PROPERTY:
THAT PORTION OF LOT 7, BLOCK 14. CITY OF SAN BERNARDINO. IN THE CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO. STATE OF CAUFORNIA. AS PER PLAT
RECORDED IN BOOK 1 OF MAPS. PAGE(S) 1. RECORDS OF SAID COUNTY. DESCRIBED AS
FOLLOWS:
BEGINNING AT A POINT ON mE EAST UNE OF LOT 7, WHERE SAID EAST LINE IS
INTERSECTED BY THE NORTH UNB OF mE EXISTING RIGHT OF WAY OF PACIFIC ELECTRIC
RAILWAY CO.: THENCE WEST ALONG THE NORTH LINE OF SAID RIGHT Of WAY 87 FEET.
MORE OR LESS. TO THE EAST UNE OF THE PROPERTY DESClUBED AS PARCEL NO.3 ABOVE;
nmNCE.NORTH 30 FEET; THENCE EAST 87 FEET. MORE OR. LESS. TO THE EAST UNE OF SAID
LOT 7; THENCE SOUTH 30 FEET. TO THE POINT OF BEGINNING. AS CONVEYED BY MARTHA
L. KIPUNGER. ET At.. TO GEORaE M. COOLEY AS TRUSTEE. BY DEED RECORDED tN BOOf(
719. PAGE 130, OF DEEDS. '
PARCEl-NO.5;
ALL THATPOR1l0N OF LOTS 6 AND 7. BLOCK 14. OF THE CITY OF SAN BERNARDINO. IN THE
CIty OF SAN BERNARDINO. COUNTY OF SA1'1i BERNARDINO, STATE OF CALIFORNIA. AS PER
PLAT RECORDED IN BOOK 7 OF MAPS. PAGB(S) 1. RECORDS OF SAID COUNTY. DESCRIBED AS
FOLLOWS:
COMMENCING AT A POINT 81 FEET WEST OF THE NORTHEAST CORNER OF SAID LOT 6. BEING
THE NORTHEAST CORNER OF WHAT WAS KNOWN AS mE cox BUILDING; THENCE WEST
ALONG THE NORTH LINE OF SAID LOT 6. 100 FEE! 10 INCHES TO THE NORTHEAST CORNER
OF THE Bun.DlNG FORMERLY OWNED BY IRE,.1NDEPENDENT ORDER. OF ODD FELLOWS;
THE.IIlCE SOUTH 100.70 FEET: THENCE EAST 100.83 FEr PARALLEL WITH THE NOR.TH liNE
OF SAID LOT 6; TIIENCE NORTH 100.70 FEET TO THE POINT Of BEGINNING.'
PARCEL NO.6:
THAT PORTION OF LOTS 6 AND 7, BLOCK 14. CITY OF SAN BERNARDINO, IN TijE CITY OF SAN
BERNARDINO. COUNTY OF SAN BEllNAllDlNO. STATE OF CALIFORN'1A, AS PER. PLAT
RECORDED IN aOOK 7 OF MAPS, PAGE(S) I, RECORDS' OF SAID COUNTY. DESCRIBED AS
FOUO~:' '
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cOMMENCING AT THE NORmEAST CORNER OF SAID LOT 6; THENCE WEST 86 FEET. MORl!
OR LESS. TO THE NORTHEAST COrtNER OF mE COX Btm.DINO. SO CALtm. ALSO KNOWN
AS mE CREAMBY BUILDING: TKBNCE soum TO THG SOUTH 1JNS OF SAID LOT 7; mENCE
EAST TO 'IliE SOtmmAST CORNER' OF SAID LOT 7; THENCE NORTH TO THE POINT OF
BEOINNING.
SAVING AND EXCEPTING 1lIEIlEFROM THAT PORTION EMBRACED WITHJN RIGHT OF WAY
OP PACI'FlC RAlLWA Y COMPANY.
P.\R.CEL NO.7:
THE EAST 3.5 FEET OF THE WEST 25.5 FEET OF THE NORTH 35 FEET OF LOT 7, BLOCK 14.
CITY Of SAN BERNARDINO. IN THE CITY OF SAN BERNARDINO. COUNTY OP SAN
BERNARDINO, STATE OF CAlJPORNIA. AS PER PLAT RECORDED IN BOOK 7 OF MAPS. PAG'E(S)
1. RECORDS OF SATD COUNTY.
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EXHIBIT .. A II
'mAT POltnON OF BLOCK 2 OF THE err\' OF SAN BERNAIlDINO. COUNTY Of SAN
BERNARDINO. STATE Of CALIfORNIA. AS'PElt PLAT RECORJ)ED IN BOOK 7 Of MAPS. PAGECS)
1. IlECORDS Of SAID COUNTY. LYING SOtmlERLy OF 2ND STIEE1'. 12..5 fEET WlDa.
. EASTERLY Of AlW)WHEAJ) AVENtJ!. 82.5 FEET WIDe. (fORMDLY ClAFTOILS1UET).
WESTERLY OF MOUNTAIN VIEW AVENUE. 12..5 FEET WIDE. CfORMBU.Y CAMEL ST1lEET) AS
SHOWN ON SAID PLAT DESCRIBED ABOVE AND NOaTHElLY Of lING S'I'REET. (FORME1U.Y
BRlOOE STREElj AS SHOWN ON BEDFOllD BItOTHEltS StJBDMSION PER PLAT RECORDED IN
BOOK 8 OF M~S. PAGE 30. RECORDS Of SAID COUNTY. .
EXCEPT THAT PORnON Of SAID BLOCK 2. DESCRJlED IN THE QUlTCLAIM DEED FROM ROY
T. COE AND HELEN C. COE, HUSBAND AND WIPE TO GEOR.GE EDWARD COE AND 1l0YNA
MAE COBB RECORDED AUGUST 24. 1967 IN BOOK 6873, PAGE 738, OPFICIAL RECORDS OF SAID
COUNTY. DESClUBED AS FOu.oWS:
THAT UNSUBDIVIDED PORnON Of LOTS 4 AND S. IN CITY BLOCIC 2. AS RECORDED IN BOOK
7 OF MAPS. PAGE I. OFfICIAL RECORDS OF SAN BERNARDINO COUNTY. CAIlFORNlA.
DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNEt OF SAID LOT 5, THENCE SOUTH 225 FEET; THENCE
NORTHEASTERLY TO A POINT SO FEP.T soum AND 184 FEET EAST OF THE POINT Of
BEGINNING; THENCE NORTHEASTERLY TO THE NORTHEAST CORNER OF SAID LOT 5; mENCE
WEST TO THE POINTOF'SEOlNNING.
A POR.nON Of SAID UNO lS AlSO SHOWN AS LOTS 1 nmoUGH 10. INCLUSIVE, OF Bt.Cl(%
4-. AND THE. AlLEY VACATED ADIACENT TO SAID LOTS, OF BEDFORI).~tnfiQ
SUBDMSlON, AS PER PUT tn:rnRlla1 IN BOOK 3 OF MAPS. PAGE 14 AND BOOK 8 OF MAPS.
PAGE 30, RECORDS OF S""AIIr COUNTY. . ~
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AFFIRMATION OF PERSONAL GUARANTEE
THIS AFFIRMATION OF PERSONAL GUARANTEE (the "Affirmation of Personal
Guarantee")ls made this of February, 2005 by J. Kevin Brunk, an individual,
Wilfrid C. Lemann, an individual, and Martin A. Matich, an individual (collectively, the
"Guarantors" and individually a "Guarantor") in favor of the Redevelopment Agency of the City
of San Bernardino, a public body corporate and politic, (the "Agency").
RECITALS
A. 303, L.L.c., a California limited liability company (the "Borrower"), has entered
into that certain agreement with the City of San Bernardino, a body corporate and politic (the
"City") entitled "2000 Community Development Block Grant Program Section 108 Program
Development Loan Agreement (303 Third Street Project)", dated as of June 1,2001, as amended
(the "City Section 108 Loan Agreement"), for the purpose of furthering certain interests of the
City within the downtown area of the City of San Bernardino, and the City prior thereto entered
into a similar agreement with the U.S. Department of Housing and Urban Development ("HUD")
entitled "Contract for Loan Guaranty Assistance Under Section 108 of the Housing and
Community Development Act of 1974", as amended, 42 U.S.C. ~5308, dated September 26,
2000, as amended (the "HUD Section 108 Loan Agreement"). As.a condition of the City
approving a loan of$I,840,oooto the Borrower, the City required Guarantors, and each of them,
to execute and deliver to City that Personal Guarantee of $1,840,000 Promissory Note of 303,
L.L.C.. exec:uted by said Guarantors, and each of them, on May 25,2001.
B. The Agency and the Borrower have previously entered into that certain agreement
entitled "2000 Owner Participation and EDI Loan Agreement (303 Third Street Project)" dated
as of September 18, 2000 (the "OPA").
C. The City Section 108 Loan Agreement, the HUD Section 108 Loan Agreement,
and the OP A have been duly amended by the respective parties prior to the date hereof to reflect
changes in circumstances and modifications to the financing and development of the project.
D. As a result of the greater than anticipated costs required to cause the
redevelopment of the 303 Third Street Project by the Borrower, the Borrower has requested that
the City arrange for the Agency to repay the HUD Section 108 Loan and that in consideration
thereof, the Agency accept a collateral assignment from the City of all of the "Section 108 Loan
Collateral" as this term is defined in the City Section 108 Loan Agreement, as security for the
repayment by the City to the Agency of a loan of Agency low- and moderate-income housing
funds in the amount of $ to the City under the terms of the 2005 Agency Loan
Agreement by and between the City and the Agency (the "2005 Agency Loan Agreement")
which the City shall use and apply to prepay the HUD Section 108 Loan. Accordingly, an
agreement entitled "2005 Loan Modificati'On and Collateral Assignment Agreement and Consent
to Assignment (the "2005 Loan Modification Agreement") is entered into by and between the
Borrower, Agency, and the City.
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E. As a condition to entering into said 2005 Loan Modification Agreement, City and
Agency have required that Guarantors, and each of them, execute and deliver this Affirmation of
Personal Guarantee re-affirming the Guarantors' obligations under said Personal Guarantee of
S 1,840,000 Promissory Note of 303, L.L.c. in favor of both the City and the Agency, should the
City assign or otherwise transfer its rights and benefits in said Personal Guarantee of $1 ,840,000
to the Agency.
NOW THEREFORE, in order to induce the City and the Agency to enter into said 2005
Loan Modification Agreement, Guarantors, and each of them, warrant, covenant and affirm as
follows:
1. Guarantors, and < each of them hereby covenant, affirm and warrant that the
obligations, warranties, covenants and conditions set forth in the Personal Guarantee of
SI,840,000 Promissory Note of 303, L.L.c. are true and correct as of the date of this <Affirmation
of Personal Guarantee, and will also inure to the benefit of the Agency should the City elect to
assign or otherwise transfer its rights and benefits under said Personal Guarantee to the Agency.
2. Guarantors, and each of them, certify and affirm that Guarantors, and each of
them, are not in default of any of the terms, conditions or obligations set forth in the Personal
Guarantee of $1,840,000 Promissory Note of 303, L.L.C. as of the date of this Affirmation of
Personal Guarantee.
3. All of the terms, obligations and conditions set forth in said Personal Guarantee
shall remain in full force and effect.
GUARANTORS
1. Kevin Brunk an indi\'idual
Wilfrid C. Lemann, an individual <
Martin A. Matich, an individual
(Notary Ackn~wledgment)
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PERSONAL Gl'AR.\NTEE OF 51,840,000 PROMISSORY NOTE
COV~;\JANT OF SPOUSE
I, , as the wife of hereby expressly
guarantee the obligations of and I jointly and severally guarantee the
obligations of . a married man. I, the undersigned, as a married woman
executing the Personal Guarantee, hereby expressly agree that recourse may be had against my
co~unity property only, and not against my sole and separate property, for all my obligations
under the Personal Guarantee.
Sign:
Date:
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CITY OF SAN BER~ARDINO
AND
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
2005 AGENCY LOAN AGREEMENT
(303 THIRD STREET PROJECT)
THIS.2005 AGENCY LOAN AGREEMENT (303 THIRD STREET PROJECT) is dated
as of February 22. 2005 (the "2005 Agency Loan Agreement") by and between the City of San
Bernardino. a municipal corporation (the "City") and the Redevelopment Agency of the City of
San Bernardino, a public body corporate and politic (the "Agency") and is entered into in light of
the facts set forth in the following Recital paragraphs:
-- RECITALS --
WHEREAS, the City and the Secretary of Housing and Urban Development (the
"Secretary of HUD") were previously parties to that certain Contract For Loan Guarantee
Assistance dated as of September 26, 2000. as amended by First Amendment To Contract For
Loan Guarantee Assistance, dated March 5, 2001, as further amended by an instrument dated as
of July 1, 2003, and as further amended by an instrument, dated as of August 16, 2004
(collectively, the original contract by and between the City and HUD, together with all of the
amendments, are referred to as the "HUD Section I 08 Loan Contract") pursuant to which the
Secretary of HUD authorized the issuance of a "Section 108 Loan guarantee" in favor of the City
and authorized the City to enter into a separate agreement to loan the proceeds of the HUD
Section 108 Loan in a maximum principal amount not to exceed One Million Eight Hundred
Forty Thousand Dollars ($1.840,000.00) to 303, L.L.c., a California limited liability company
(the "Borrower") in connection with the development of the community development project
referred to as the "303 Third Street Project"; and
WHEREAS, the City has used the proceeds of the loan made by the Secretary ofHUD to
the City under the HUD Section 108 Loan Contract (the "HUD Section 108 Loan") to originate a
loan to the Borrower of One Million Eight Hundred Forty Thousand Dollar ($1,840,000) under
the terms of that certain loan agreement entitled "2000 Community Development Block Grant
Program Section 108 Project Development Loan Agreement (303 Third Street Project), dated as
of September 18,2000, as amended (the "City Section 108 Loan Agreement") by and between
the City and the Borrower; and
WHEREAS, as of the date of this 2005 Agency Loan Agreement the outstanding
principal balance of the HUD Section 108 Loan is $1,740,000; and
WHEREAS, the Borrower intends to proceed with the completion of the, "Borrower
Improvements Phase II", as this term is defined in the City Section 108 Loan Agreement, and to
install certain improvements, and thereafter transfer title in the completed "303 IbiJ:d Street
Project" as this term is defined in the City Section 108 Loan Agreement, to the County of San
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Bernardino (the "County"), in accordance with the terms of that agreement entitled "Agreement
for Purchase and Sale of Real. Property", dated as of June 29, 2004 (the "County Purchase
Contract") by and between the Borrower and the County; and
WHEREAS, in order to complete the 303 Third Street Project the Borrower has requested
that the City provide further accommodation to the Borrower and the Borrower has requested
that the City approve a further amendment to the City Section 108 Loan Agreement which would
authorize the Borrower to obtain senior construction loan financing for the 303 Third Street
Project in an original principal senior construction loan amount not to exceed Seventeen Million
Five Hundred Thousand Dollars ($17.500.000) (the "Senior Construction Loan"); and
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WHEREAS, in order to accommodate the request of the Borrower relating to the
proposed Senior Construction Loan for the completion of the 303 Third Street Project and the
satisfaction of the Borrower's obligations under the County Purchase Contract, the City has
made arrangements with the Agency for the Agency to prepay the HUD Section 108 Loan in
full, and in consideration thereof, the Agency shall accept a collateral assignment from the City
of all of the "Section I 08 Loan Collateral" as this term is defined in the City Section I 08 Loan
Agreement, as security for the repayment by the City to the Agency of a loan of Agency low-
and moderate-income housing funds in an amount not to exceed One Million Seven Hundred
Thousand Dollars ($1,740,000) under the terms of this 2005 Agency Loan Agreement. The City
shall use and apply the proceeds of the loan made available to it under the 2005 Agency Loan
Agreement to prepay the HUD Section 108 Loan. The Borrower has acknowledged that it is not
possible to obtain the necessary approvals directly from HUD as would be required pursuant to
the HUD Section 108 Loan Agreement to allow the Borrower Improvements (Phase II) to
proceed, and for that reason, the Borrower requested the Agency to provide a loan to the City to
repay the existing HUD Section 108 Loan; and
WHEREAS, the City and the Agency deem it to be in the best interests of the Borrower,
the City and the Agency that the HUD Section 108 Loan be repaid by the City using the proceeds
of the loan to be made by the Agency as set forth herein and that the proposed loan of Agency
funds to the City for such purposes under this 2005 Agency Loan Agreement be secured in favor
of the Agency by a collateral assignment of the Section 108 Loan Collateral, and all security
instruments thereunder; and
WHEREAS, the Borrower has acknowledged that it will benefit from the prepayment of
the HUD Section 108 Loan and the collateral assignment of the Section 108 Loan Collateral to
the Agency, and the related modifications of the terms of the City Section 108 Loan Agreement,
and the OPA and has consented to the assigmnent and the modification of certain terms and
conditions pursuant to the 2005 Loan Modification and Collateral Assignment Agreement and
Consent to Assignment -- 2000 Community Development Block Grant Program Section 108
Project Development Loan Agreement, dated as of February 22, 2005 (the "2005 Loan
Modification Agreement""); and
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\VHEREAS, the City, the Agency, and the Borrower have prepared the 2005 Loan
Modification Agreement, which contains the foUowingpertinent provisions:
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Agency agrees to provide a loan to City in principal amount not to exceed One
Million Seven Hundred Forty Thousand Dollars ($1,740,000), which tht: City
shall use and apply solely to repay the HUD Section 108 Loan;
(ii) City agrees to assign and transfer to Agency all rights, title and interest that the
City may have in the Section 108 Loan Collateral;
(iii) various amendments to the text of the City Section 108 Loan Agreement and the
text of the corresponding Borrower Section 108 Promissory Note and City Deed
of Trust to reflect, among other things, that the outstanding principal balance of
the City Section 108 Loan shall be due and payable upon the earlier to occur of:
(a) the transfer of title of the 303 Third Street Parcel by the Borrower to the
County, or its nominee, under the terms of the County Purchase Contract, or (b)
December 31, 2006;
(iv) various amendments to the Owner Participation Agreement (the "OPA"), dated as
of September 18, 2000, as amended, by and between the Borrower and the
Agency to reflect, among other things, a modification to maturity date of EDI
Loan, EDI Loan Promissory Note and EDI Loan Deed of Trust to the earlier to
occur of: (a) the transfer of title of the 303 Third Street Parcel by the Borrower to
the County, or its nominee, under the terms of the County Purchase Contract, or
(b) December3l, 2006;
(v) , City and Agency to establish an escrow for the administration of the repayment of
the mID Section 108 Loan and the documentation of this 2005 Agency Loan
Agreement and the acceptance and recordation of all necessary documents to
consummate the transaction.
NOW THEREFORE, THE CITY AND THE AGENCY DO HEREBY AGREE AS
FOLLOWS:
Section 1. In addition to the usage of the defined terms set forth in the Recital
paragr;lphs of this 2005 Agency Loan Agreement, the following words and phrases shall have
the meaning as provided below:
. 2005 Agency Note means and refers to the promissory note issued by the City
and. payable- to- Agency, or its: assignee, in the original principal amount nat to--
exceed One Million Seven Hundred Thousand Dollars ($1,740,000). The 2005
Agency Note evidences the indebtedness of the City to Agency under this 2005
Agency Loan Agreement. The form of 2005 Agency Note is attached hereto as
Exhibit "A".
.
2005 Loan means and refers to the loan in the original principal sum not to
exceed. One MiUi()oSeveILH;J.ntlnod Thousand Dollars ($1,740,000) to be made
by the Agency to the City as provided in Section 2 of this 2005 Agency Loan
Agreement.
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Low-and Moderate-Income Housing Fund means and refers to a portion of the
property tax increment revenues of the Agepcy which the Agency is legally
obligated to deposit in such fiscal year for the Low and Moderate Income
Housing Fund ofthe.Project Area.
Section 2.
2005 Loan.
(a) The Agency hereby agrees to loan to the City a principal amount not to exceed
One Million Seven Hundred Thousand Dollars ($1,740,000), as the 2005 Loan, subject to the
terms of this 2005 Agency Loan Agreement. The 2005 Loan shall be evidenced by the 2005
Agency Note which shall be executed by the City and delivered to the Agency at the time of
disbursement of the proceeds of the 2005 Loan to the City, upon the satisfaction of each of the
conditions of this 2005 Agency Loan Agreement and Section 9(b) ofthe 2005 Loan Modification
Agreement. The form of 2005 Agency Note is attached hereto and incorporated herein by
reference.
(b) The date of 2005 Agency Note shall be the date on \vhich alI of conditions for the
disbursement of the proceeds of 2005 Loan to the City under Section 9(a) of the 2005 Loan
Modification Agreement have been satisfied and the outstanding principal balance and alI
accrued and unpaid interest due under the HUD Section 108 Loan has in fact been paid by City
to HUD. Such date shalI be indicated the face of 2005 Agency Note and such date shall also be
the date of the 2005 Agency Note. The 2005 Agency Note shalI mature, and the outstanding
principal balance and all accrued and unpaid interest shalI be due and payable on the date (the
"Maturity Date") providedin-the--2005 Agency Note.
(c) Interest shall accrue on the outstanding principal balance of Agency Note from its
date until paid in fulI at a rate per annum as set forth in Agency Note, and accrued and unpaid
interest shalI be payable in quality instalIments to the Agency prior-to the Maturity ~at"the
times provided in the 2005 Agency Note.
(d) The City hereby pledges to make payments and alIocate proceeds to the Agency
under Agency Note prior to its Maturity Date solely the from the collateral assignment from the
City of all of the Section 108 Loan Collateral, as more fully set forth below, in Section 3.
The 2005 Agency Note is a special and limited obligation of-the City and the--sole source
of funds as pledged for the repayment thereof is as provided in Section 3, herein. Neither the
taxing power of the City or any other agency is pledged to repay the-prineipalor.1(.Cnled~~t
under 2005 Agency Note.
Section 3. Soecial Pledl!e of Certain Citv Funds For Reoavment of the 2005 Loan.
The City hereby agrees to assign and transfer all of the payments which the City may receive
from the Borrower after the date of the 2005 Agency Note as shall be due and payable under the
City Section 108 Loan and the City hereby further agrees to assign and transfer all of the City's
rights, title and interest. in. the..Se.c.tion 108 Loan Collateral pursuant to the..terms and conditions
of this 2005 Agency Loan Agreement, the 2005 Loan Modification Agreement. and the- 2005
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Collateral Assignment of Section 108 Loan Documents by the City to the Agency arising under a
contract for Loan Guarantee Assistance under Section 108 of the Housing and Community Act
of 1974, as amended. 42 U.S.c. Section 5304 (the "2005 Collateral Assignment Agreement") as
security for the payment when due of the 2005 Loan. No other source of funds of the City are
pledged or made available therefore and the obligation of the City to repay the 2005 Loan is not
a general obligation of the City. .
Section 4.
Conditions for Disbursement of Proceeds of2005 Loan.
(a) The City shall use and apply the proceeds of the :2005 Loan to prepay the HUD
Section 108 Loan, in full. pursuant to the terms and conditions of this 2005 Agency Loan
Agreement; and for no other purpose.
(b) The following conditions precedent shall be satisfied prior to the disbursement by
the Agency of the proceeds of the 2005 Agency Loan to the City:
(i) the City shall have assigned all Section 108 Loan Collateral and shall have
satisfied all of its obligations to the Agency under the 2005 Loan Modification
Agreement and 2005 Collateral Assignment Agreement and there shall be no
default by the City under the HUD Section 108 Loan;
(ii) all of the conditions of Section 9(b) of the 2005 Loan' Modification Agreement
shall have been satisfied: and
(iii) HUD shall have accepted.. the prepayment of the. HUn Section 108 Loan in
accordance with this 2005 Agency Loan Agreement, 2005 Loan Modification
Agreement, and 2005 Collateral Assignment Agreement.
(c) The \1ayor is authorized and directed to execute such ancillary loan security
documents as Agency may reasonably request to evidence the collateral assignment by the City
of the Section 108 Loan Collateral Documents.
Section 5. Protection of Securitv. The City hereby agrees to take all reasonable
action to protect any of the security pledged to the Agency for the repayment of the 2005 Loan.
For so long as any unpaid balance of the 2005 Loan may exist, the City further agrees and
covenants to enforce the r-ights of the City under the City Section 108 Loan Agreement and each
of the Section 108 Loan Collateral Documents.
Section 6. Further Assurances. The City shall upon the request of the Agency adopt,
make, execute and deliver to the Agency all such further resolutions, instruments and assurances
as may be reasonably necessary to carry out the intention of this 2005 Agency Loan Agreement.
Section 7. Amendment. This 2005 Agency Loan Agreement may l;>e amended by the
mutual, written, consent of the City and the Agency.
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Section 8. Waiver of Personal Liabilitv. No member, officer, agent or employee of
the City shall be individually or personally liable for the payment of the principal of or interest
on the 2005 Agency Note; but nothing herein contained shall relieve any such member, officer,
agent or employee from the performance of any official duty provided bylaw.
Section 9. Payment of Business Days. Whenever in this 2005 Agency Loan
Agreement any amount is required to be paid on a day, which is not a business day of the
Agency, such payment shall be required to be made on the business day of the Agency
immediately following such day.
Section 10. Notices. All written notices to be given under this 2005 Agency Loan
Agreement shall be given by first class mail or personal delivery or by telecopier and promptly
confirmed by mail, to the party entitled thereto at its address set forth below, or at such address
as the party may provide to the other party in writing from time to time. Notice shall be effective
48 hours after deposit in the United States mail, postage prepaid or, in the case of personal
delivery to any person, upon actual receipt at the address set forth below:
To the Agency:
Economic Development Agency of the
City of San Bernardino
201 North "E" Street, Suite 301
San Bernardino, CA 9240 I
Tel: (909) 663-1044
Fax: (909) 888-9413
To the City:
Office of the Mayor
City of San Bernardino
300 North "D" Street
San Bernardino, CA 92418
Tel: (909) 384-5133
Fax: (909) 384-5067
Section 11. Partial Invaliditv. If any Section, paragraph, sentence, clause or phrase of
this 2005 Agency Loan Agreement shall for any reason be held illegal, invalid or unenforceable,
such holding shall not affect the validity of the remaining portions of this 2005 Agency Loan
Agreement. The City hereby declares that it would have adopted and approved this 2005
Agency Loan Agreement and each and every other section, paragraph, sentence, clause or phrase
hereof irrespective of the fact that anyone or more Sections, paragraphs, sentences, clauses, or
phrases of this 2005 Agency Loan Agreement may be held illegal, invalid or unenforceable.
Section 12. Governing Law. This 2005 Agency Loan Agreement snail be construed
and governed in accordance with the laws of the State of California.
(SIGNATURES ON SUBSEQUENT PAGE]
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IN WITNESS WHEREOF, the undersigned officers of the parties have executed this
2005 Agency Loan Agreement as of the date indicated next to the signatures of each of them.
CITY
City of San Bernardino
Date:
Judith Valles, Mayor
Rachel Clark, City Clerk
APPROVED AS TO FORM
~ 4iii-:f.
City Attorney Sr.P"..'Y G1y A#W~'r
AGENCY
Redevelopment Agency of the
City of San Bernardino
Date:
By:
Chair of the Community Development
Commission of the City of San Bernardino,
its governing board
By:
Executive Director
APPROVED AS TO FORM
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2005
CITY OF SAN BERNARDINO, CALIFORNIA
CITY PROMISSORY NOTE
(303 Third Street Project)
THIS PROMISSORY NOTE IS A SPECIAL LIMITED
OBLIGATION OF THE CITY PAYABLE SOLELY FROM THE
SOURCE OF CITY FUNDS DESCRIBED HEREIN AND
NEITHER THE FAITH NOR CREDIT NOR TAXING POWER
OF ANY OTHER LOCAL AGENCY, INCLUDING THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN
BER.1\lARDINO, IS PLEDGED HEREUNDER
Principal Amount:
Not to Exceed: $1,740,000
Date:
,2005
Interest Rate: annual rate of three percent (3%) per annum
THIS CITY PROMISSORY NOTE (the HNote") evidences an indebtedness of the City of
San Bernardino, California (the HCity") to the City of San Bernardino Redevelopment Agency
(the "Agency"). For value received, the City hereby promises to pay to the order of the Agency
at such address as the Agency shall designate, the principal sum of Dollars
($ ) at the time specified herein, together with interest thereon in accordance with the
terms hereof. This Note is hereby tendered in accordance with the terms of the 2005 Agency
Loan Agreement, dated as of February 22, 2005 (the "2005 Agency Loan Agreement"), by and
between the City and the Agency and is subject to the following provisIons:
SECTION 1. This Note is tendered by the City to the Agency as evidence of the
indebtedness of the City to the Agency incurred in connection with the disbursement of the
proceeds of 2005 Agency Loan Agreement made by the Agency to the City. The terms and
provisions of the 2005 Agency Loan Agreement are hereby incorporated into this Note by this
reference. Capitalized terms used herein and not otherwise defined shall have the meaning
assigned to them in the 2005 Agency Loan Agreement.
SECTION 2. Interest on 'the outstanding principal balance of this Note, shall accrue
from its date as indicated, above, as follows:
(i) Interest on the outstanding principal amount of this Note shall accrue
commencing on the Effective Date of the 2005 Agency Loan Agreement at the annual rate of
three percent (3%) per annum. Such accrued interest shall be due and payable by the City to the'
Agency on each February 1, May 1, August 1 and November 1. commencing with the first
installment on August 1, 2005, and quarterly thereafter, until the principal amount of this Note
has. heefuepaid in: full to: the,. Agency. Such interest shall be calculated based upon the actual
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number of days for which any principal balance of this Note was then outstanding during each
o such quarterly period.
(ii) Notwithstanding any other provision of the 200-5 Agency Loan Agreement to the
contrarv. in the event of the occurrence of an event of default under the 2005 Agency Loan
Agreement, or in the event of the occurrence of an event of default under the City Section J 08
Loan Agreement, or any of the Section 108 Loan Collateral Documents, or in the event that this
Note is not repaid in full when due, then in any such event, the rate of interest which shall be
payable by the City under this Note shall be increased to a default rate of ten percent (10%) per
annum, commencing on the date of such event of default until such time as the event of default is
cured or the outstanding principal balance of this Note, and all accrued and unpaid interest
thereon is paid in full.
SECTION 3. The outstanding principal balance of this Note shall be due and payable
upon the earlier to occur of: (i) the transfer of title of the 303 Third Street Parcel by the Borrower
to the County of San Bernardino, or its nominee, under the terms of the County Purc_hase
Contract. or (ii) December 31, 2006.
SECTION 4. The City hereby pledges to make payments hereunder prior to the
Maturity Date solely and exclusively from the proceeds of payments which the City receives
from the Borrower under the Borrower Section 108 Promissory Note and from any other source
of the Section 108 Loan Collateral, as more fully set forth in the 2005 Agency Loan Agreement.
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This Note is a special and limited obligation of the City and the sole source of funds as
pledged for the repayment thereof is as provide~ in the 2005 Agency Loan Agreement. Neither
the taxing power of the City or any other agency is pledged to repay the principal balance or
accrued interest hereunder.
SECTION 5. This Note shall mature as of December 31, 2006. unless prepaid in full
before such date.
SECTION 6. The City may prepay the principal amount of this Note and accrued
interest thereon, at any time without penalty upon thirty (30) days prior written notice to the
Agency.
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SECTIO:\ 7. The Agency shall have no power to transfer or assign its rigbt to receive
the payment of principal and payments of accrued interest under this Note unless the City has
first granted written approval to the Agency for such a proposed assignment in its sole and
absolute discretion; provided, however, that the City agrees to cooperate vo.rith the Agency as
necessary or appropriate to provide the Agency with additional documentation to evidence the
indebtedness of the City to the Agency under this Note and to perfect or protect the pledge of
City funds as set forth in Section 4 to secure the payments of the City to the Agency under-this
Note.
CITY
City of San Bernardino
By:
Judith Valles, Mayor
By:
Rachel G. Clark, City Clerk
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RESOLUTION 1\0.
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO MAKING CERTAIN FINDINGS
RELATING TO THE TEMPORARY INVESTMENT OF LOW- AND
MODERATE-INCOME HOUSING FUNDS AND APPROVING A 2005
LOAN MODIFICATION AND COLLATERAL ASSIGNMENT
. AGREEMENT AND CONSENT TO ASSIGNMENT BY AND AMONG 303,
L.L.c., THE CITY OF SAN BERNARDINO AND THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND APPROVING A 2005 REDEVELOPMENT LOAN AGREEMENT BY
AND BETWEEN THE CITY AND THE AGENCY (303 THIRD STREET
PROJECT)
WHEREAS, the City of San Bernardino (the "City") and 303, L.L.C., a Califomi
limited liability company (the "Borrower'.) have previously entered into a certain agreemen
entitled "2000 Community Development Block Grant Program Section 108 Project Developmen
I Loan Agreement (303 Third Street Project)", dated as of September 18, 2000, as amended (th
"City Section 108 Loan Agreement'"), for the purpose of furthering the community eeonomi
!I
development goals of the City within the downtown area of the City, and contemporaneousl.
therewith, the City entered into an agreement with the United States Department of Housing an
Urban Development ("'HUD") entitled "Contract for Loan Guaranty Assistance Under Sectio
108 of the Housing and Community De\elopment Act of 1974", as amended, 42 U.S.c. ~5308
dated September 26, 2000, as amended (the "HUD Section 108 Loan Agreement") in order t
provide a source of funds to support the activities contemplated under the City Section 108 Lo
21 Agreement; and
22 WHEREAS, the Redevelopment Agency of the City of San Bernardin~ (the "Agency"
23 and the Borrower have pre\iously entered into a certain agreement entitled "2000 Owne
24 Participation and EDI Loan Agreement (303 Third Street Project)" dated as of September 18
25 2000, as amended (the "OP A.') in support of the. activities contemplated under the City Sectio
o 108 Loan Agreement: and
4844-2602-7776.2
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WHEREAS. the City Section I 08 Loan Agreement, the HUD Section 108
Agreement and the OP A have each been duly amended by the parties thereto prior to the date 0
this Resolution, to reflect changes in circumstances and modifications to the financing of th
"Borrower Improvements (Phase II)" and the "303 Third Street Project", as each of these term
are defined in the City Section 108 Loan Agreement, including the proposed acquisition thereo
by the COUHty of San Bernardino pursuant to the terms and conditions of an agreement entitle
"Agreement for Purchase and Sale of Real Property", dated June 29, 2004 (the "County Purchas
Contract"") bv and between the Borrower and the County of San Bernardino; and
. .
WHEREAS, as a result of the greater than anticipated costs required to complete th
redevelopment of the Borrower Improvements (Phase II) and the 303 Third Street Project by th
Borrower, the Borrower has requested that the City arrange for the Agency to repay the HU
Section 108 Loan and that in consideration thereof, the Agency accept a collateral assignmen
from the City of all of the "Section I 08 Loan Collateral" as this term is defined in the Cit.
Section I O~ Loan Agreement, as security for the repayment by the City to the Agency of a 10
of Agency low- and moderate-income housing funds in. an amount not to exceed $1,740,000 t
the City under the terms of the 2005 Agency Loan Agreement by and between the City andth
Agency (the "2005 Agency Loan Agreement"). The City shall use and apply the proceeds ofth
loan made available to it by the Agency under the 2005 Agency Loan Agreement to prepay th
19. HUD Section 108 Loan; and
20 WHEREAS, the Agency deems it appropriate to further assist the City to repay the HUD
2 I Section 108 Loan and that the Agency make available to the City' for such purposes th~
22 proceeds of a loan of low- and moderate-income housing funds of the Agency under the 2005
23 Agency Loan Agreement to be secured in favor of the Agency by a collateral assignment of the
24 City Section 108 Loan Agreement, and all security instruments thereunder.
25
4844-2602-7776.2 -2-
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NOW, THEREFORE. THE COMMl.;NITY DEVELOPI\1ENT COMMISSION OF" THE
CITY OF SA1'\ BER.'\!ARDINO'DOES HEREBY RESOLVE, DETER.\1INE A'\!D ORDER, AS
FOLLOWS:
Section I.
The Commission hereby finds and detennines that a temporary investment of
available cash fimds of the AlZencv' s low-and moderate-income housing fimds through December 31,
~ - .
2006, in a maximum principal amount not to exceed $1,740,000, in accordance \\ith the terms and
conditions of the 2005 Agency Loan Agreement in the form attached hereto as Exhibit '"A", is indicated,
and that such a temporary investment of Agency low- and moderate-income housing fimds for the
period of time provided in such 2005 Agency Loan Agreement shal\ not interfere \\ith the Agency's
programs to promote and expand the community's supply of affordable housing. The Commission
I further finds and determines that the rate of interest payable by the City to the Agency on the loan as
may hereafter be originated by the Agency under the terms of the 2005 Agency Loan Agreement, is
greater than the rate of interest payable to the Agency on cash held for inveStment in the Agency low-
and moderate-income housing fimd. and that the repayment of the 2005 Agency Loan is adequately
secured by the col\ateraI assignment to the Agency by the City of its security interests in the 303 Third
Street Property under the City Section 108 Loan Agreement. In light of the foregoing, the Agency
hereby finds and detennines that the temporary investment of up to $1,740.000. in Agency low- and
moderate-income housing funds, as contemplated under the 2005 Agency Loan Agreement, is a
permitted temporary investment of such Agency low- and moderate-income housing fimds.
Section 2.
The Commission hereby approves the :W05 Loan Modification
Collateral Assignment "Agreement and Consent to Assignment (the "2005 Loan Modificatio
Agreement") by and among the Borrower, the City and the Agency in the. form auached heret
:!2 as Exhibit "B". The Chair of the Commission and Executive Director of the Economi
23 Development Agency are hereby authorized and directed to execute the :W05 Loan Modificatio
24 Agreement on behalf of the Agency, together with such technical and conforming changes a
25
may be approved by the Chair of the Commi~~ion UP9n.thecrecommendatiol1,"oLthe..Executiv
Director of the Economic Development Agency and special legal counsel to the Agency.
4844-2602-7776~2 -3-
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Section 3.
The Commission hereby approves the 2005 Agency Loan Agreement i
7
legal counsel to the Agency,
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the form as attached hereto as Exhibjt "A", The Chair of the Commission and Executiv
Director of the Economic Development Agency are hereby authorized and directed to execut
the 2005 Agency Loan Agreement on behalf of the Agency, together with such technical an
conforming changes as may be approved by the Chair of the Commission upon th
recommendation of the Executive Director of the Economic Development Agency and specia
Section ~.
Subject to the execution by all parties of the 2005 Loan Modificatio
Agreement and the satisfaction of the conditions enumerated in Section 9(b) of the 2005 Lo
Moditication Agreement the Chair of the Commission and Executive Director of the Economi
Development Agency are hereby authorized and directed to provide the proceeds of the loan 0
Agency low- and moderate-income housing funds to the City under the terms of the 200
Agency Loan at the earliest feasible time. The Chair of the Commission and Executive Directo
of the Executive Director of the Economic Development Agency are hereby further authorized t
execute the consent of the Agency to the 2005 Collateral Assignment of Section 108 Lo
Documents on behalf of the Agency in the form as includ~d as an exhibit to the 2005 Loa
Modification Agreement, together with such technical and conforming changes as may b
approved by the Chair of the Commission upon the recommendations of the Executive Directo
of the Economic Development Agency and special legal counsel to the Agency.
Section 5.
This Resolution shall have no further force or effect forty five (45) days
after its adoption unless prior to such date the 2005 Loan Modification Agreement and the 2005
. Agency Loan Agreement are both fully executed by all of the parties thereto.
Section 6.
The Agency Secretary shall certify to the adoption of this Resolution.
This Resolution shall take effect upon adoption.
1//
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RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO MAKING CERTAIN FINDINGS
RELATING TO THE TEMPORARY INVEST~ENT OF LOW- AND
MODERATE-INCOME HOUSING FUNDS AND APPROVING A 2005
LOAN MODIFICATION .AND. COLLATERAL ASSIGNMENT
AGREEMENT AND CONSENT TO ASSIGNMENT BY AND AMONG 303,
L.L.C., THE CITY OF SAN BERNARDINO AND THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND APPROVING A 2005 REDEVELOPMENT LOAN AGREEMENT BY
AND BETWEEN THE CITY AND THE AGENCY (303 THIRD STREET
PROJECT)
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
9 Community Development Commission of the City of San Bernardino at a
meet!ng
19
Secretary
20 The foregoing resolution is hereby approved this
day of
,2005.
21
22
Judith Valles, Chairperson
Community Development Commission
of the City of San Bernardino
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24 Approved as to form and Legal Content: .
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COlnnlunity Development Commission Resolution
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CITY OF SAN BERNARDINO
AND
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
2005 AGENCY LOAN AGREEMENT
(303 THIRD STREET PROJECT)
THIS 2005 AGENCY LOAN AGREEMENT (303 THIRD STREET PROJECT) is dated
as of February 22, 2005 (the "2005 Agency Loan Agreement") by and between the City of San
Bernardino, a municipal corporation (the "City") and the Redevelopment Agency of the City of
San Bernardino, a public body corporate and politic (the "Agency") and is entered into in light of
the facts set forth in the following Recital paragraphs:
-- RECITALS --
WHEREAS, the City and the Secretary of Housing and Urban Development (the
"Secretary of HUD") were previously parties to that certain Contract For Loan Guarantee
Assistance dated as of September 26, 2000, as amended by First Amendment To Contract For
Loan Guarantee Assistance, dated March 5, 2001, as further amended by an instrument dated as
of July I, 2003, and as further amended by an instrument, dated as of August 16, 2004
(collectively, the original contract by and between the City and HUD, together with all of the
amendments, are referred to as the "HUD Section I 0& Loan Contract") pursuant to which the
Secretary ofHUD authorized the issu~ofa "Section 108 Loan guarantee" in favor of the City
and authorized the City to enter into a separate agreement to loan the proceeds of the HUD
Section 108 Loan in a maximum principal amount not to exceed One Million Eight Hundred
Forty Thousand Dollars ($1,840,000.00) to 303, L.L.C., a California limited liability company
(the "Borrower") in connection \\'ith the development of the community development project
referred to as the "303 Third Street Project"; and
WHEREAS, the City has used the proceeds of the loan made by the Secretary of HUD to
the City under the HUD Section 108 Loan Contract (the "HUD Section 1 08 Loan") to originate a
loan to the Borrower of One Million Eight Hundred Forty Thousand Dollar ($1,840,000) under
the terms of that certain loan agreement entitled "2000 Community Development Block Grant
Program Section I 08 Project Development Loan Agreement (303 Third Street Project), dated as
of September 18, 2000, as amended (the "City Section ,108 Loan Agreement") by and between
the City and the Borrower; and
WHEREAS, as of the date of this 2005 Agency Loan Agreement the outstanding
principal balance of the HUD'Section 108 Loan is $1,740,000; and
WHEREAS, the Borrower intends to proceed with the completion of the "Borrower
Improvements Phase II", as this term is defined in the City Section 108. Loan Agreement, and to
. instaH certain improvements, and thereafter transfer titte in the completed "303 Third Street
Project" as this term is defined in the City Section 108 Loan Agreement, to the County of San
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Bernardino (the "County"), in accordance with the terms of that agreement entitled "Agreemt'nt
for Purchase and Sale of Real Property", dated as of June 29, 2004 (the "County Pur~hce:,e
Contract") by and between the Borrower and the County; and
WHEREAS, in order to complete the 303 Third Street Project the Borrower has requested
that the City provide further accommodation to the Borrower and the Borrower has requested
that the City approve a further amendment to the City Section 108 Loan Agreement which would
authorize the Borrower to obtain senior construction loan financing for the 303 Third Street
Project in an original principal senior construction loan amount not to exceed Seventeen Million
Five Hundred Thousand Dollars ($17,500,000) (the "Senior Construction Loan"); and
WHEREAS, in order to accommodate the request of the Borrower relating to the
proposed Senior Construction Loan for the completion of the 303 Third Street Project and the
satisfaction of the Borrower's obligations under the County Purchase Contract, the City has
made arrangements with the Agency for the Agency to prepay the HUD Section 108 Loan in
full, and in consideration thereof, the Agency shall accept a collateral assignment from the City
of all of the "Section 108 Loan Collateral" as this term is defined in the City Section 108 Loan
Agreement, as security for the repayment by the City to the Agency of a loan of Agency low-
and moderate-income housing funds in an amount not to exceed One Million Seven Hundred
Thousand Dollars ($1,740,000) under the terms of this 2005 Agency Loan Agreement. The City
shall use and apply the proceeds of the loan made available to it under the 2005 Agency Loan
Agreement to prepay the HUD Section 108 Loan. The Borrower has acknowledged that it is not
possible to obtain the necessary approvals directly from HUD as would be required pursuant to
the HUD Section 108 Loan Agreement to allow the Borrower Improvements (Phase If) to
proceed, and for that reason, the Borrower requested the Agency to provide a loan to the City to
repay the existing HUD Section 108 Loan; and
WHEREAS, the City and the Agency deem it to be in the best interests of the Borrower,
the City and the Agency that the HUn Section 108 Loan be repaid by the City using the proceeds
of the loan to be made by the Agency as set forth herein and that the proposed loan of Agency
funds to the City for such purposes under this 2005 Agency Loan Agreement be secured in favor
of the Agency by a collateral assignment of the Section 1 08 ~oan Collateral, and all security
instruments thereunder; and
WHEREAS, the Borrower has acknowledged that it will benefit from the prepayment of
the HUD Section 108 Loan and the collateral assignment of the Section 108 Loan Collateral to
the Agency, and the related modifications of the terms of the City Section 108 Loan Agreement,
and the OP A and has consented to the assignment and the modification of certain terms and
conditions pursuant to the 2005 Loan Modification and Collateral Assignment Agreement and
Consent to Assignment -- 2000 Community Development Block Grant Program Section 108
Project Development Loan Agreement, dated as of February 22, 2005 (the "2005 Loan
Modification Agreement"); and
WHEREAS, the City, the Agency, and the Borrower have prepared the 2005 Loan
Modification Agreement, which contains the following pertinent provisions:
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(i) Agency agrees to provide a loan to City in principal amount not to exceed One
Million Seven Himdred Forty Thousand Dollars ($1,740,000), which the City
shall use and apply solely to repay the HUD Section 108 Loan;
(ii)
City agrees to assign and transfer to Agency all rights, title and interest that the
City may have in the Section 108 Loan Collateral; .
(iii)
various amendments to the text of the City Section 108 Loan Agreement and the
text of the corresponding Borrower Section 108 Promissory Note and City Deed
of Trust to reflect, among other things, that the outstanding principal balance of
the City Section 108 Loan shall be due and payable upon the earlier to occur of:
(a) the transfer of title of the 303 Third Street Parcel by the Borrower to the
County, or its nominee, under the terms of the County Purchase Contract, or (b)
December 31,2006;
(iv)
various amendments to the Owner Participation Agreement (the "OPA"), dated as
of September 18, 2000, as amended, by and between the Borrower and the
Agency to reflect, among other things, a modification to maturity date of EDI
Loan, ED! Loan Promissory Note and ED! Loan Deed of Trust to the earlier to
occur of: (a) the transfer oftitle of the 303 Third Street Parcel by the Borrower to
the County, or its nominee, under the terms of the County Purchase Contract, or
(b) December 31,2006;
(v)
City and Agency to establish an escrow for the administration of the repayment of
the HUD Section 108 Loan and the documentation of this 2005 Agency Loan
Agreement and the acceptance and recordation of all necessary documents to
consummate the transaction. .
NOW THEREFORE. THE CITY AND THE AGENCY DO HEREBY AGREE AS
FOLLOWS:
Section I. In addition to the usage of the defined terms set forth in the Recital
paragraphs of this 2005 Agency Loan Agreement, the following words and phrases shall have
the meaning as provided below:
. 2005 Agency Note means and refers to the promissory note issued by the City
and payable- to Agency, orits- assignee, in the original principal amount not to
exceed One Million Seven Hundred Thousand Dollars ($1,740,000). The 2005
Agency Note evidences the indebtedness of the City to Agency under this 2005
Agency Loan Agreement. The form of 2005 Agency Note is attached hereto as
Exhibit "A".
.
2005 Loan means and refers to the loan in the original principal sum not to
exceed One Million Seven. Hundred Thousand Dollars ($1.740,OOO) to be made
by the Agency to the City as provided in Section 2 of this 2005 Agency Loan
Agreement.
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Low-and Moderate-Income Housing Fund means and refers to a portion of the
property tax increment revenues of the Agency which the Agency is legally
obligated to deposit in such fiscal year for the Low and Moderate Income
Housing Fund of the Project Area.'
Section 2.
2005 Loan.
(a) The Agency hereby agrees to loan to the City a principal amount not to exceed
One Million Seven Hundred Thousand Dollars ($1,740,000), as the 2005 Loan, subject to the
terms of thi$ 2005 Agency Loan Agreement. The 2005 Loan shall be evidenced by the 2005
Agency Note which shall be executed by the City and delivered to the Agency at the time of
disbursement of the proceeds of the 2005 Loan to the City, upon the satisfaction of each of the
conditions of this 2005 Agency Loan Agreement and Section 9(b) of the 2005 Loan Modification
Agreement. The form of 2005 Agency Note is attached hereto and incorporated herei~ by
reference.
(b) The date of 2005 Agency Note shall be the date on which all of conditions for the
disbursement of the proceeds of 2005 Loan to the City under Section 9(a) of the 2005 Loan
Modification Agreement have been satisfied and the outstanding principal balance and all
accrued and unpaid interest due under the HUD Section 108 Loan has ,in fact been paid by City
to HUD. Such date shall be indicated the face of 2005 Agency Note and such date shall also be
the date of the 2005 Agency Note. The 200-5 Agency Note shall mature, and the outstanding
principal balance and all accrued and unpaid interest shill be due and payable on the date (the
"Maturity Date-") provided in the 2005 Agency Note.
(c) Interest shall accrue on the outstanding principal balance of Agency Note from its
date until paid in full at a rate per annum as set forth in Agency Note, and accrued and unpaid
interest shall be payable in quality installments to the Agency prior to the Maturity Date at the
times provided in the 2005 Agency Note.
(d) The City hereby pledges to make payments and ,allocate proceeds to the Agency
unde~ Agency Note prior to its Maturity Date solely the from the collateral assignment from the
City of all of the Section 108 Loan Collateral, as more fully set forth below, in Section 3.
The 2005 Agency Note is a special and limited obligation of the City and the sole source
of funds as pledged for the repayment thereof is' as provided in Section 3, herein. Neither the
taxing power of the City or any other agency is pledged to repay the principal or- accrued interest
under 2005 Agency Note.
Section 3. Soecial Pledge of Certain City Funds For Reoavment of the 2005 Loan.
The City hereby agrees to assign and transfer all of the payments which the City may receive
from the Borrower after the date of the 2005 Agency Note as shall be due and payable under the
City Section 108 Loan and the City hereby further agrees to assign and transfer all of the City's
rights, title and interest in the Section 108 Loan Collateral pursuant to the terms and conditions
of this 2005 Agency Loan Agreement, the 2005 Loan Modification Agreement, and the 2005
4848-0574-3104.( 4
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Collateral Assignment of Section 108 Loan Documents by the City to the Agency arising under a
contract for Loan Guarantee Assistance under Section 108 of the Housing and Community Act
of 1974, as amended, 42 V.S.C. Section 5304 (the "2005 CoUateral Assignment Agreement") as
security for the payment when due of the 2005 Loan. No other source of funds of the City are
pledged or made available therefore and the obligation of the City to repay the 2005 Loan is not
a general obligation of the City. .
Section 4.
Conditions for Disbursement of Proceeds of2005 Loan.
(a) The City shall use and apply the proceeds of the 2005 Loan to prepay the HVD
Section 108 Loan, in full, pursuant to the terms and conditions of this 2005 Agency Loan
Agreement, and for no other purpose.
(b) The following conditions precedent shall be satisfied prior to the disbursement by
the Agency of the proceeds of the 2005 Agency Loan to the City:
(i) the City shall have assigned all Section 108 Loan Collateral and shall have
satisfied all of its obligations to the Agency under the 2005 Loan Modification
Agreement and 2005 Collateral Assignment Agreement and there shall be no
default by the City under the HVD Section 108 Loan;
(ii)
all of the conditions of Section 9(b) of the 2005 Loan Modification Agreement
spall have been satisfied; and
(iii) HVD shall have accepted the prepayment of the HUD Section 108 Loan in
accordance with this 2005 Agency Loan Agreement, 2005 Loan Modification
Agreement, and 2005 Collateral Assignment Agreement.
(c) The Mayor is authorized and directed to execute such ancillary loan security
documents as Agency may reasonably request to evidence the collateral assignment by the City
of the Section 108 Loan Collateral Documents.
Section 5. Protection of Security. The City hereby agrees to take all reasonable
action to protect any of the security pledged to the Agency for the repayment of the 2005 Loan.
For so long as any unpaid balance of the 2005 Loan may exist, the City further agrees and
covenants to enforce the rights of the City under the'tity Section 108 Loan Agreement and each
of the Section 108 Loan Collateral Documents.
Section 6. Further Assurances. The City shall upon the request of the Agency adopt,
make. execute and deliver to the Agency all such further resolutions, instruments and assurances
as may be reasonably necessary to carry out the intention of this 2005. Agency Loan Agreement.
Section 7. Amendment. This 2005 Agency Loan Agreement may be amended by the
mutual, written, consent of the City and the Agency.
4848-0574-31~.1 5
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Section 8. Waiver of Personal Liability. No member, officer, agent or employee of
the City shall be individually or personally liable for the payment of the principal of or interest
on the 2005 Agency Note; but nothing herein contained shall relieve any such member, officer,
agent or employee from the performance of any official duty provided by law.
Section 9. Payment of Business Days. Whenever in this 2005 Agency ~oan
Agreement any amount is required to be paid on a day, which is not a business day of the
Agency, such payment shall be required to be made on the business day of the Agency
immediately following such day.
Section 10. Notices. AIl ....Titten notices to be given under this 2005 Agency Loan
Agreement shaIl be given by first class mail or personal delivery or by telecopier and promptly
confirmed by mail, to the party entitled thereto at its address set forth below, or at such address
as the party may provide to the other party in writing from time to time. Notice shall be effective
48 hours after deposit in the United States mail, postage prepaid or, in the case of personal
delivery to any person, upon actual receipt at the address set forth below:
To the Agency:
Economic Development Agency of the
City of San Bernardino
201 North "E" Street, Suite 301
San Bernardino, CA 92401
Tel: (909) 6,63-1044
Fax: (909) 888-9413
To the City:
Office of the Mayor
City of San Bernardino
300 North "0" Street
San Bernardino, CA 92418
Tel: (909) 384-5133
Fax: (909)384-5067
Section 11. Partial Invaliditv. If any Section, paragraph, sentence, clause or phrase of
this 2005 Agency Loan Agreement shaIl for any reason be held illegal, invalid or unenforceable,
such holding shall not affect the validity of the remaining portions of this 2005 Agency Loan
Agreement. The City hereby declares that it would have adopted and approved this 2005
Agency Loan Agreement and each and every other section, paragraph, sentence, clause or phrase
hereof irrespective of the fact that anyone or more Sections~ paragraphs~ sentences, clauses, or
phrases of this 2005Ageney Loan Agrcancnt may ~hdctillegal, ittvalid:m: unenfot~l.e.'
Section 12. Governinl2: Law. This 2005 Agency Loan Agreement shall be construed
and governed in accordance with the laws of the State of California.
[SIGNA TURESONstJBSEQUENT PAGE)
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IN WITNESS WHEREOF, the undersigned officers of the parties have executed this
2005 Agency Loan Agreement as of the date indicated next to the signatures of each of them.
CITY
City of San Bernardino
Date:,
Judith Valles, Mayor
Rachel Clark, City Clerk
APPROVED AS TO FORM
1~~.
City Attorney S,..D"P"'? Q~~If"'l
AGENCY
Redevelopment Agency of the
City of San Bernardino
Date:
By:
Chair of the Community Development
Commission of the City of San Bernardino,
its governing board
By:
Executive' Director
APPROVED AS TO FORM
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Agency c~sel
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Exhibit "A"
to
2005 Loan Agreement
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2005
CITY OF SAN BERNARDINO, CALIFORNIA
CITY PROMISSORY NOTE
(303 Third Street Project)
THIS PROMISSOR Y NOTE IS A SPECIAL LIMITED
OBLIGATION OF THE CITY PAYABLE SOLELY FROM THE
SOURCE OF CITY FUNDS DESCRIBED HEREIN AND
NEITHER THE FAITH NOR CREDIT NOR TAXING POWER
OF ANY OTHER LOCAL AGENCY, INCLUDING THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO, IS PLEDGED HEREUNDER
Principal Amount:
Not to Exceed: $1,740,000
Date:
,2005
Interest Rate: annual rate of three percent (3%) per annum
THIS CITY PROMISSORY NOTE (the "Note") evidences an il1debtedness of the City of
San Bernardino, California (the "City") to the City of San Bernardino Redevelopment Agency
(the "Agency"). For value received, the City hereby promises to pay to the order of the Agency
at such address as the Agency shall designate, the principal sum of Dollars
($ ) at the time specified herein, together with interest thereon in accordance with the
terms hereof. This Note is hereby tendered in accordance with the terms of the 2005 Agency
Loan Agreement, dated as of February 22, 2005 (the "2005 Agency Loan Agreement"), by and
between the City and the Agency and is subject to the following provisions:
SECTION I. This Note is tendered by the City to the Agency as evidence of the
indebtedness of the City to the Agency incurred in connection with the disbursement of the
proceeds of 2005 Agency Loan Agreement made by the Agency to the City. The terms and
pro~isions of the 2005 Agency Loan Agreement are hereby incorporated into this Note by this
reference. Capitalized terms used herein and not otherwise defined shall have the meaning
assigned to them in the 2005 Agency Loan Agreement.
SECTION 2. Interest on the outstanding principal balance of this Note, shall accrue
from its date as indicated, above, as follows:
(i) Interest on the outstanding principal amount of this Note shall accrue
commencing on the Effective Date of the 2005 Agency Loan Agreement at the annual rate of
three percent (3%) per annum. Such accrued interest shall be due and payable by the City to the
Agency on each February I, May 1, August I and November I, commencing with the first
installment on August 1, 2005. and quarterly thereafter, until the principal amounlQf this N~
has been repaid in full to the Agency. Such iulelcst shall be calculated" based upon the actual
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number of days for which any principal balance of this Note was then outstanding during each
such quarterly period.
(ii) Notwithstanding any other provision of the 2005 Agency Loan Agreement to the
contrary, in the event of the occurrence of an event of default under the 2005 Agency Loan
Agreement, or in the event of the occurrence of an event of default under the City Section 108
Loan Agreement, or any of the Section 108 Loan Collateral Documents, or in the event that this
Note is not repaid in full when due, then in any such event, the rate of interest which shall be
payable by the City under this Note shall be increased to a default rate often percent (10%) per
annum, commencing on the date of such event of default until such time as the event of default is
cured or the outstanding principal balance of this Note, and all accrued and unpaid inte<rest
thereon is paid in full.
SECTION 3. The outstanding principal balance of this Note shall be due and payable
upon the earlier to occur of: (i) the transfer of title of the 303 Third Street Parcel by the Borrower
to the County of San Bernardino, or its nominee, under the terms of the County Purchase
Contract, or (ii) December 31, 2006.
SECTION 4. The City hereby pledges to make payments hereunder prior to the
Maturity Date solely and exclusively from the proceeds of payments which the City receives
from the Borrower under the Borrower Section 108 Promissory Note and from any other source
of the Section 108 Loan Collateral, as more fully set forth in the 2005 Agency Loan Agreement.
This Note is a special and limited obligation of the City and the sole source of funds as
pledged for the repayment thereof is as provided in the 2005 Agency Loan Agreement. Neither
the taxing power of the City or any other agency is pledged to repay the principal balance or
accrued interest hereunder.
SECTION 5. This Note shall mature as of December 31, 2006, unless prepaid in full
before such date.
SECTION 6. The City may prepay the principal amount of this Note and accrued
interest thereon, at any time without penalty upon thirty < (30) days prior written notice to the
Agency.
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SECTION 7. The Agency shall have no power to transfer or assign its right to receive
the payment of principal and payments of accrued interest under this Note unless the City has
first granted written approval to the Agency for such a proposed assignment in its sole and
absolute discretion; provided, however; that the City agrees. to cooperate with the Agency as
necessary or appropriate to provide the Agency with additional docwnentation to evidence the
indebtedness of the City to the Agency under this Note and to perfect or protect the pledge of
City funds as set forth in Section 4 to secure the payments of the City to the Agency under this
Note.
CITY
City of San Bernardino
By:
-
Judith Valles, Mayor
, By:
Rachel G. Clark, City Clerk
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COllllllunity Development Commission Resolution
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2005
LOAN MODIFICATION AND COLLATERAL ASSIGNMENT AGREEMENT
AND
CONSENT TO ASSIGNMENT
2000 COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM SECTION 108
PROJECT DEVELOPMENT LOAN AGREEMENT
(303 Third Street Project)
THIS 2005 LOAN MODIFICA nON AND COLLATERAL ASSIGNMENT
AGREEMENT AND CONSENT TO ASSIGNMENT (the "2005 Loan Modification
Agreement") is dated as of February 22, 2005, and is entered into by and among the City of San
Bernardino, a municipal corporation (the "City"), the Redevelopment Agency of the City of San
Bernardino, a public body corporate and politic (the "Agency"), and 303, LLC., a California
limited liability company (the "Borrower"), and is made and executed in light of the facts set
forth in the following recital paragraphs:
RECITALS
The City and the Borrower have previously entered into a certain agreement entitled
"2000 Community Development Block Grant Program Section 108 Project Development Loan
Agreement (303 Third Street Project)", dated as of June 1,2001, as amended (the "City Section
108- Loan Agreement"), for the purpose of furthering certain interests of the City within: the
downtown area of the City of San Bernardino, and the City prior thereto entered into a similar
agreement with the United States Department of Housing and Urban Development ("HUD")
entitled "Contract for Loan Guaranty Assistance Under Section 108 of the Housing and
Community Development Act of 1974", as amended, 42 U.S.c. ~5308, dated September 26,
2000, as amended (the "HUD Section I 08 Loan Agreemenf').
The Agency and the Borrower have previously entered into a certain agreement entitled
"2000 Owner Participation and ED! Loan Agreement (303 Third Street Project)" dated as of
September 18, 2000, as amended (the "OP A").
The City Section 1 08 Loan Agreement, the HUD Section 108 Loan Agreement and the
OPA have each been duly amended by the parties thereto prior to the date of this 2005 Loan
Modification Agreement, to reflect changes in circumstances and modifications to the financing
of the- "HollOwer Improvements (Phase II)" and the "303 Third Street Project", as each of these
terms are defined in the City Section 108 Loan Agreement, and the proposed acquisition thereof
by the County of San Bernardino pursuant to the terms and conditions of an agreement entitled
"Agreement for Purchase and Sale of Real Property", dated June 29, 2004 (the "County Purchase
Contract") by and between the Borrower and the County of San Bernardino.
As of the date of this 2005 Loan Modification Agreement, the outstanding principal
balance of the HUD Section 10& Loan is SI,740,000.
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As a result of the greater'than anticipated costs required to complete the redevelopment of
the Borrower Improvements (Phase II) and the 303 Third Street Project by the Borrower, the
Borrower has requested that the City arrange for the Agency to repay the HUD Section 108 Loan
and that in consideration thereof, the Agency accept a collateral assignment from the City of all
of the "Section 108 Loan Collateral" as this term is defined in the City Section 108 Loan
Agreement, as security for the repayment by the City to the Agency of a loan of Agency low-
and moderate-income housing funds in an anlOunt not to exceed $1,740,000 to the City under the
terms of the 2005 Agency Loan Agreement by and between the City and the Agency (the "2005
Agency Loan Agreement'"). The City shall use and apply the proceeds of the loan made
available to it under the 2005 Agency Loan Agreement to prepay the HUD Section 108 Loan.
The Borrower acknowledges that it is not possible to obtain the necessary approvals from HVP
as would be required pursuant to the HUD Section 108 Loan Agreement to allow th~ Borrower
Improvements (Phase II) to proceed, and for that reason, the Borrower requested the Agency to
provide a loan to the City to repay the existing HUD Section 108 Loan.
The parties to this 2005 Loan Modification Agreement deem it to be in the best interests
of the Borrower, the City and the Agency that the HUD Section 108 Loan be repaid by the City
using the proceeds of the loan to be made by the Agency and that the proposed loan of Agency
funds to the City for such purposes under the 2005 Agency Loan Agreement be secured in favor
of the Agency by a collateral assignment of the City Section 108 Loan Agreement, and all
security instruments thereunder.
The Borrower acknowledges that it shall benefit from the prepayment of the- BUD
Section 108 Loan and the collateral assignment of the Section 108 Loan Collateral to the
Agency, and the related modifications of the terms of the City Section 108 Loan Agreement, and
the OPA as specifically set forth herein as evidenced by the execution of this 2005 Loan
Modification Agreement by the Borrower to consent to the assignment and the modification of
the terms as hereinafter set forth. . . .
NOW THEREFORE, AND FOR GOOD AND VALUABLE CONSIDERATION, mE
PARTIES ENTER INTO THIS 2005 LOAN MODIFICATION AGREEMENT IN ORDER TO
SATISFY CERTAIN CONDITIONS CONTAINED IN THE APPLICABLE AGREEMENTS
AND CONTRACTS TO WHICH THE PARTIES TO THIS 2005 LOAN MODIFICATION
AGREEMENT ARE BOUND AND TO PROVIDE FOR THE COMPLETION OF THE
BORROWER IMPROVEMENTS (PHASE II) AND THE REDEVELOPMENT OF THE 3(t3~
THIRD STREET PROJECT.
Section I.
US82e of Defined Terms.
(a) To the extent practical, the meaning of defined terms as used in this 2005 Loan
Modification Agreement shall have the same meaning as set forth in the City Section 108 Loan
Agreement and/or the OP A, unless the, context of usage of such terms in this 2005 Loan
Modification Agreement shall clearly require otherwise.
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(b) The following defined teJ1Tls as set forth in Section 1 of the City Section 108 Loan
Agreement are hereby modified to read as follows:
[and]
".
Parking Lot Parcel. The words "Parking Lot Parcel": (i) prior to the date on
which the conditions of Section 9(b) of the 2005 Loan Modification Agreement
are satisfied, mean and refer to the lands located at the southwest comer of 2nd
Street and Mountain View Avenue in the City, with respect to which the
Borrower and the City have previously entered into an agreement entitled
"Parking Lot Parcel Covenant", dated June 1,2001, and filed for recordation on
June 1, 2001, as Recorded Instrument No. 214147 Official Records of the
Recorder of San Bernardino County; and (ii) after the date on which the
conditions of Section 9(b) of the 2005 Loan Modification Agreement are satisfied,
mean and refer to the lands located at the northwest comer of the intersection of
Arrowhead Avenue and 2nd Street in the City (also described elsewhere for
purposes of clarification as the "Former Southern California Edison Parcel"), with
respect to which the Borrower, or its assignee, and the City shall jointly execute
and file for recordation an instrument entitled "'Repta~lII;:ul P-dlkiIlg Lot
Covenant" as authorized in Section 5 of the Parking Lot Parcel
Covenant/Recorded Instrument No. 214147, Official Records of the Recorder of
San Bernardino County."
Former Southern California Edison Parcel. The words "ForinerSouthern
California Edison Parcel" mean and refer to the lands located at the northwest
comer of the intersection of Arrowhead Avenue and 2nd Street in the City. The
Former Southern California Edison Parcel is more particularly described in that
certain proposed real estate purchase and sale agreement by and between the
Southern California Edison Company and the Borrower (the "Edison Parcel
Purchase and Sale Agreement"). The Former Southern California Edison Parcel
is located adjacent to the 303 Third Street Parcel. A copy of the draft of the
Edison Parcel Purchase and Sale Agreement, dated as of February 18, 2005, is on
file with the Executive Director of the Economic Development Agency."
LMB Performance Deed of Trusr(City"). The \\'ords "LMB Performance
Deed of Trust (City)" mean and refer to the performance deed of trust executed by
LMWDevelopment, LLC. a California limited liabiiityculU}1CUJ}'. i'rl"fiwor..oftbc-
City, which LMB Performance Deed of Trust (City) shall pledge the lands
described in Recorded Instrument No. 214147 to the City as additional security
for the repayment to the City by the Borrower of the City Section 108 Loan."
Section 2.
Assilmment and Consent.
(a) Subject to' the-terms llfIttcoudib-..,..ofthis'2005' [<Jan"Modifit;cdiualtlSJ..-.I~,
the Agency hereby agrees to provide a loan to the City in a principal amount not to exceed
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$1,840,000, which the City shall use ~d apply solely to repay all sums owed-by the City to
HUD under the terms of the HUD Section 108 Loan Agreement, and in exchange therefore the
City agrees to assign and transfer to the Agency all rights, title and interests that the City may
have in the Section 108 Loan Collateral.
(b) The Borrower, by the execution of this 2005 Loan Modification Agreement,
hereby consents to the 2005 Agency Loan Agreement and the use of the proceeds of the 2005
Agency Loan by the City to prepay the HUD Section 108 Loan, and the Borrower agrees that all
prQvisions of the City Section 108 Loan Agreement, including such modifications to the City
Section 108 Loan Agreement as set forth in this 2005 Loan Modification Agreement, shall
remain in fll:!l force and effect notwithstanding the prepayment of the HUD Section 108 Loan.
(c) Unless specifically modified, amended or deleted by the express provisions of this
2005 Loan Modification Agreement, all of the terms, provisions and conditions of the Section
108 Agreement shall remain in full force and effect in accordance with the intent of the parties as
expressed herein.
Section 3.
Consent to Asshmment and Further Assurances and Documents.
(a) The Borrower hereby approves the form of the instrument entitled "2005
Collateral Assignment of Section 108 Loan Documents by the City of San Bernardino to the
Redevelopment Agency of the City of San Bernardino Arising Under a Contract for Loan
Guarantee Assistance under Section 108 of the Housing and Community Development Act of
1974, As Amended, 42 V.S.C. ~5308" (the "2005 Collateral Assignment Agreement") ill the
form attached hereto as Exhibit "A" and incorporated herein by this reference, together with such
technical changes as may hereafter be approved by the City and the Agency.
(b) The City agrees to execute any and all additional assurances, assignments or any
other documents reasonably requested by the Agency to evidence the assignment to the Agency
of the Section 108 Loan Collateral by the City pursuant to this 2005 Loan Modification
Agreement, including, but not limited to the letters of credit, the promissory note and the deed of
trust as specified in the Section 108 Agreement.
(c) The Borrower agrees to execute any and all additional assurances, assignments or
any other <locuments reasonably requested by the City or the Agency to evidence the assignment
to the Agency of the Section- 108- Loan. Collateral by the City to the Agency pursuant to the. 200S .
Collateral Assignment Agreement upon its execution by the Borrower, the City and the Agency,
including, but not limited to the letters of credit, the Borrower Section 108 Promissory Note and
the City Deed of Trust, all as specified in the City Section 108 Agreement.
Section 4. Specific Amendments to Citv Section 168 Loan Al!reement and
Certain Related 363 Third Street Proiect Documents. The term "Effective Date of this 2005
Loan Modification Agreement" is defined in Section 9, below. The City Section 108 Loau.
Agreement and the corresponding Borrower Section 108 Promissory Note and the City Deed of
Trust are hereby amended by the Borrower and the City to reflect the following changes in the
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Modification Agreemenf'.
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(a) The provisions of Section 3.0(a)(4} of the City Section 108 Loan Agreement shall
not be applicable to the repayment by the City and/or the Agency of the amounts owed by the
City to HUD pursuant to the HUD Section 108 Loan Agreement; and Section 3.0(a)(4) of the
City Section 108 Loan Agreement shall continue to be applicable solely to any prepayments of
the Section 108 Loan that are remitted by the Borrower directly to the City or the Agency in
accordance with this 2005 Loan Modification Agreement.
(b) The Borrower acknowledges that no additional funds shall be disbursed to the
Borrower pursuant to the City Section 108 Agreement except for an amount presently estimated
to be $45,000.00 which shall be transferred from the Funded Interest Reserve Fund to the City
for the repayment of the HUD Section 108 Loan. The precise amount of the sum as shall be
transferred from the Funded Interest Reserve Fund to the City upon the satisfaction of The
conditions set forth in Section 9(b) shall be subject to a mutual verification and final accounting
of the City and the Borrower.
(c) The principal repayment schedule for the Section 108 Loan set forth in Section
5.0(a) of the Section 108 Loan Agreement shall not be applicable as to the Borrower and the
Agency pursuant to this 2005 Loan Modification Agreement. In lieu thereof, the full outstanding
principal balance of the Section 108 Loan shall be due and payable upon the earlier to occur of:
(i) the transfer of title of the 303 Third Street Parcel by the Borrower to the County of San
Bernardino, or its nominee, under the terms of the County Purchase Contract, or (ii) December
31,2006.
(d) Interest on the principal amount of the Section 108 Loan shall accrue for the
benefit of the Agency commencing on the Effective Date of the 2005 Loan Modification
Agreement at the annual rate of three percent (3%) per annum. Such accrued interest shall be
due and payable by the Borrower to the City on each February 1, May I, August 1 and
November I, commencing on August 1, 2005, and quarterly thereafter, until the principal
amount of the Section 108 Loan has been repaid in full to the City. Such interest shall be
calculated based upon the actual number of days for which any principal balance of the City
Section 108 Loan was then outstanding during each such quarterly period.
Notwithstanding any other provision of the City Section 108 Loan Agreement or the '
Borrower Section 108- Promissory Note to the contrary, in the event of the occurrence of an
Event of Default under the City Section 108 Loan Agreement, or in the event of the occurrence
of an Event of Default under the OP A, or in the event that the City Section 108 Loan is not
repaid when due, then in any such event, the rate of interest which shall be payable by the
Borrower under the Borrower Section 108 Promissory Note shall be increased to a default rate of
ten percent (10%) per annum, commencing on the date of such Eventof Default until such time
as the Event of Default is cured or the outstanding principal balance of the City Section' 108
Loan, and all accrued and unpaid interest thereon is paid in full.
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(e) The City shall assign to the Agency the letters of credit as are required to be
provided by certain individuals of the Borrower in accordance with the City Section 108
Agreement, and, if necessary, the City -may retain such letters of credit but the City agrees to
present such letters of credit for payment. and to seek any extensions or modifications thereto as
may be requested by the Agency if it is deemed advisable for the letters of credit to remain in the
name of the City. The Borrower agrees that the individuals of the Borrower who have obtained
such letters of credit shall cooperate with the City and the Agency to assure that the Section 108
Loan security as previously made available to the City in the form of the letters of credit shall
continue to be available for the benefit of the City and the Agency in accordance with this 2005
Loan Modification Agreement.
(f) Subject to the satisfaction of the conditions set forth in Section 9(b) of the 2005
Loan Modification Agreement, the City hereby agrees to execute a quitclaim deed in favor of the
Borrower, releasing the interest of the City in the Parking Lot Parcel under the terms of the
Parking Lot Covenant in exchange for the Borrower, or its assignee under the Edison Parcel
Purchase and Sale Agreement, executing the Replacement Parking Lot Covenant which shall
substitute the lands described in Recorded Instrument No. 214147 for the lands described in the
Edison Parcel Purchase and Sale Agreement. The form of the Replacement Parking Lot
Covenant shall be substantially similar in the form to the Parking Lot Covenant (as provided in
Section 5 of the Parking Lot Covenant), except that the lands subject to the Replacement Parking
Lot Covenant shall be the Former Southern' California Edison Parcel. The Mayor and Executive
Director of the Economic Development Agency are hereby authorized and directed to execute
the final form of the Replacement Parking Lot Covenant, together with such technical and
conforming changes as may be recommended by the Executive Director of the Economic.
Development Agency and City Attorney concurrently upon the satisfaction of the conditions set
forth in Section 9(b) of this 2005 Loan Modification Agreement.
(g) Subject to the satisfaction of the conditions set forth in Section 9(b) of this 2005
Loan Modification Agreement, the City hereby agrees to execute and deliver for recordation a
partial release and reconveyance of its security interest in the Parking Lot Parcel under the terms
of the City Deed of Trust. The Mayor and the Executive Director of the Economic Development
Agency are hereby authorized to execute such an instrument in the form as approved by the
Executive Director of the Economic Development Agency in consultation with the City Attorney
(h) The City and the Agency each agree to subordinate their respective security
interests under the City Deed of Trust, and any of the other Section 108 Loan Collateral
(excluding however-from such subordination, the leners of credit and the Borrower Guaranty) to
any construction financing from a commercial lender that is equal to not more tI;1an $17,500,000
for the financings of the improvements to the 303 Third Street Project as required by the County
of San Bernardino pursuant to the County Purchase Contract. The provisions of Section 15.0 of
the City Section 108 Loan Agreement are hereby deleted and neither the City or the Agency shall
subordinate their respective security interests in the City Deed of Trust or any of the other
Section 108 Loan Collateral to any other financing. of the Borrower as otherwise described in
Section 15.0 ofthc.City Sec1iml. 108 Loan Af;&..........It.
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(i) On the Effective Date, all funds as may then be held by First American Title
Insurance Company under the Fiscal Agent Agreement shall be paid to the City for the account
of the Borrower, and the Borrower and the City shall jointly execute a notice of termination of
the Fiscal Agent Agreement.
(j) All prior amendments to the City Section 108 Agreement shall r~main in full
force and effect unless specifically modified by this 2005 Loan Modification Agreement.
Section S. Specific Amendments to OPA. Subject to the terms and conditions of
this 2005 Loan Modification Agreement, the OPA, as previously amended, is hereby further
amended by the Borrower and the Agency to the extent as set forth below.
(a) The EDI Loan together with the EDI Loan Promissory Note and the EDI Loan
Deed of Trust as provided in Section 4 of the OPA shall be modified to have a maturity date of
the earlier to occur of: (i) the date of the transfer of title for the 303 Third Street Parcel by the
Borrower to the County of San Bernardino or its nominee under the terms of the County
Purchase Contract; or (ii) December 31,2006.
(b) Section 5 of the 2004 Amendment to the OPA shall be modified to reflect the date
upon which the Participation fee shall be due and payable to be the earlier to occur of: (i) the
date of the transfer of title for the 303 Third Street Parcel from the Borrower to the County of
San Bernardino; or (ii) December 31, 2006.
(c) The EDI Promissory Loan Note. the EDI Loan Performance Deed of Trust and
the Notice of Memorandum of Agreement shall be modified to reflect all changes as requin:d by
this 2005 Loan Modification Agreement, and the Borrower shall cooperate with the Agency to
execute any and all documents reasonably required by the Agency to implement the provisions
of this 2005 Loan Modification Agreement.
(d) Subject to the satisfaction of the conditions of Section 9(b) of the 2005 Loan
Modification Agreement, the Agency hereby agrees to execute and deliver for recordation a
partial release and reconveyance of its security interest in the Parking Lot Parcel under the terms
of the EDI Loan Performance Deed of Trust and the Notice of memorandum of Agreement. The
Chair of the Community Development Commission of the City of San Bernardino and the
Executive Director of the Agency are hereby authorized to execufe -such instrumen-ts of partial
release in the form as shall be approved by the Executive Director of the Agency and Agency
Counsel.
(e) All prior amendments to the OPA shall remain in full force and effect unless
specifically modified by this 2005 Loan Modification Agreement.
Section 6.
Representations of tbe Parties.
(a) ~Cit:y 1"ln<:"~lmLambtlllnlIlts to tfre-Agency ~it is not aware of any default
on its part nor has any notice of any default by the City either under the HUD Section 108 Loan
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Agreement or the City Section I 08 Loan Agreement, nor has the City failed to perfonn any duty
or other obligation required of the City pursuant to either of said agreements.
(b) The Borrower represents and warrants to the Agency that it is not aware of any
default on its part nor has any notice of any default by the Borrower under the City Section 'I 08
Loan Agreement nor has the Borrower failed to perfonn ,any duty or other obligation required of
the Borrower pursuant to the City Section 108 Loan Agreement.
(c) , The Borrower represents and warrants to the City and the Agency that it is not
aware of any default on its part nor has any notice of default been issued under the Mezzanine
Financing.
(d) The Borrower represents and warrants to the City and the Agency that it is not
aware of any default on its part nor has any notice of default been issued under the County
Purchase Contract and that the County Purchase Contract is in full force and effect and is
enforceable in accordance with its tenns.
(e) The Borrower represents and warrants to the City and the Agency that it is aware
of no basis on which the makers of the Borrower Guaranties, or any of them, may assert any
defense against the City or the Agency to the payment of such Borrower Guaranties upon proper
presentation of demand thereof by the City or the Agency, as applicable, and the Borrower shall
cause the makers of the Borrower Guaranties, and each of them, to execute and deliver to the
City and the Agency the Affinnation of Guaranty in the fonn attached hereto as Exhibit "B" and
incorporated herein by this reference.
Section 7. Closin2 and Fundin2 of HUD Section 108 Loan Repavment. The
parties agree that the City and the Agency shall establish an escrow to be held at a location and
by a person selected by the Agency for the administration of the repayment of the HUD SectioIL
108 Loan and the acceptance and recordation of all documents required pursuant to this 2005
Loan Modification Agreement. The 2005 Collateral Assignment Agreement shall be recorded
against the 303 Third Street Property concurrently upon the repayment in full of the HUD
Section 108 Loan to provide notice to all persons and lenders regarding the agreements and
commitments of the parties hereto.
Section 8. Further Representations and Warranties of Borrower. The
undersigned individuals on behalf of the Borrower represent and warrant that the Borrower bas-
taken all requisite actions and has obtained all necessary approvals to cause this 2005 Loan
Modification Agreement to be executed and delivered and that the letters of credit as required by
the Section 108 Agreement shall continue to be provided to the Agency either directly or
indirectly through the City for the benefit of the Agency.
Section 9. Effective Date and Listin2 of Applicable Conditions to Fundin2 of
HUD SectiolL 198- Loan Repavment.
';840-9415-3216.4
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(a) This 2005 Loan Modific~tion Agreement shall take effect upon execution of all
parties hereto. It is recognized by the Borrower that the execution of this 2005 Loan
Modification Agreement by the City is subject to the approval of the Mayor and Common
Council of the City at a duly noticed and held public meeting and the execution of this 2005
Loan Modification Agreement by the Agency is subject to the approval of the Community
Development Commission of the City of San Bernardino at a duly noticed and held public
meeting.
. (b) The Effective Date of this 2005 Loan Modification Agreement shall occur on the
date when each of the following conditions has been satisfied:
(i) the 2005 Loan Modification Agreement has been fully executed by the parties:
(ii) the Borrower has provided the City and the Agency with appropriate evidence of
comprehensive general liability insurance coverage as required under the City
Section 108 Loan Agreement and the OP A;
(iii) the City and the Agency have each taken appropriate affirmed action to approve
the 2005 Agency Loan Agreement;
(iv) the City has obtained an appropriate update of its lender's policy oftide insurance
insuring its security interest in the 303 Third Street Property, including the
instrument describe below in (viii), in form reasonably acceptable to the City;
(v) the Borrower has delivered an approving opinion of its legal counsel. in form
reasonably acceptable to the City and the Agency to the effect that the Borrower
has taken all necessary action to enter into this 2005 Loan Modification
Agreement and that the City Section 108 Loan Agreement and the OPA, as
modified by this 2005 Loan Modification Agreement, when fully executed by the
parties shall be enforceable in accordance with its terms; .
(vi) the Borrower has caused to be delivered an approving legal opinion of legal
counsel to LMB Development, LLC, in a form reasonably acceptable to the City
that LMB Development, LLC, has taken all necessary action to execute the LMB
Performance Deed of Trust (City) pledging the Parking Lot Parcel as additional
security to the City for repayment of the City Section 108 Loan by the Borrower
and that such LMB Performance Deed of Trust, when executed. ancldelivered by
LMB Development, LLC, to the City shall be enforceable in accordance with its
terms;
(vii) the Edison Parcel Purchase and Sale Agreement has been fully executed by the
. parties thereto, and is enforceable in accordance with its terms;
(viii) the Borrower has executed in recordable form the Replacement Parking Lot
Covenant and such instrument shall be recorded against the Former Southern
4840-9415-3216.4
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California Edison Parcel concurrently with the other documents d~scribed in this
Section 9(b);
(ix)
,
the City has executed in recordable fonn its release of the Parking Lot Covenant
in consideration for the recordation of the Replacement Parking Lot Covenant;
(x)
the City has executed its partial release and reconveyance of the Parking Lot
Covenant from the City Deed of Trust;
(xi)
the Agency has executed its partial release and reconveyance of the Parking Lot
Parcel from the ED! Loan Perfonnance Deed of Trust and the Notice of
Memorandum of Agreement;
(xii) the Borrower has caused LMB Development, LLC, to deliver its Related
Borrower Guaranty to the City in a fonn approved by the City;
(xiii) the Borrower has caused LMB Development, LLC, to execute in recordable fonn
the LMB Perfonnance Deed of Trust in a fonn acceptable to the City. Such LMB
Perfonnance Deed of Trust may be subordinate to the security interest, if any, of
the Construction Lender in the Parking Lot Parcel on the same tenns and
conditions set forth in Section 1.40 of the City Section 108 Loan Agreement;
(xiv) if requested by the City, LMB Development, LLC, shall have executed an
acknowledgment of its consent to a security assignment by the City in favor of the
Agency of the City's security interest in the Related Borrower Guaranty in a fonn
reasonably acceptable to the City and the Agen~y;
(xv) the Borrower has delivered a fully executed fonn of the Affinnation of Personal-
Guaranty;
(xvi) there shall be no default under the County Purchase Contract and the County shall
have waived its right under the County Purchase Contract to tenninate the County
Purchase Contract, and the Borrower shall have provided the City and the Agency
with written evidence of such County waiver in a fonn reasonably satisfactory to
the Executive Director of the Agency;
(xvii) the Borrower has paid in immediate funds to the Agency the following sums:
(A) a loan origination charge of one percent (l %) of the outstanding principal
balance of the HUD Section 108 Loan as of the day immediately
preceding the Effective Date of the 2005 Loan Modification Agreement;
and
(B)
a loan-modification- adririnistrative charge of Twelve Thousand Dollars
($12,000);
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(xviii) the Borrower shall have paid the City all accrued and unpaid interest under the
Borrower Section 108 Promissory Note through the Effective Date;
(xix) the parties have executed all ancillary or related documents as may be reasonably
requested by the City, the Agency or HUD;
(xx) the proceeds of the 2005 Agency Loan, together with the funds transferred to the
City by the Borrower under Section 4(b) and the funds payable by the Borrower
to the City under Section 9(b) (ix), are disbursed or collected for the account of
the City in immediate funds to pay in full the principal balance and all accrued
and unpaid interest due to HUD as of the Effective Date under the HUD Section
108 Loan.
4840-9415-32 I 6.4
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IN WITh'ESS WHEREOF, the parties hereto have duly executed this 2005 Loan
Modification Agreement as evidenced by the signatures of their members and officers as of the
dates which appear next to such signatures. This 2005 Loan Modification Agreement may be
executed in counterparts and when fully. executed by the parties, each such counterpart shall be
deemed to be one original instrument.
Date:
CITY
City of San Bernardino
By:
Judith Valles
Mayor
By:
Rachel G. Clark
City Clerk
APPROVED AS TO FORM: .
~}~~~ .
By: -'~91'
City Attorney S~/),~C7AfI~
BORROWER
Date:
APPROVED AS TO FORM:
By:
Attorneys for Borrower
48-10-9415-3216.4
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303, L.L.c., a California limited liability company
By:
Martin A. Matich. Manager
By: CCJ, Inc., a California corporation, Manager
By:
J. Kevin Brunk, its President
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AGENCY
Redevelopment Agency of the City
of San Bernardino
Date:
By:
By:
APPROVED AS TO FOR.\1:
By '<~~
Agency nsel .
';840-9';15-3Zlo~
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Judith Valles
Chair of the Community Development
Commission of the City of San Bernardino
Gary Van Osdel
Executive Director
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Exhibit "A"
to
2005 Loan Modification
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RECORDING REQUESTED AND
WHEN RECORDED MAIL TO:
Redevelopment Agency of the
City of San Bernardino
201 North "E" Street, Suite 301
San Bernardino, California 92401
(Space Above Line For Use By Recorder)
Recording Fee Exempt Pursuant to Government Code Section 6103
2005
COLLATERAL ASSIGNMENT OF SECTION 108 LOAN DOCUMENTS
BY THE CITY OF SAN BERNARDINO TO THE REDEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO ARISING UNDER A CONTRACT FOR
LOAN GUARANTEE ASSISTANCE UNDER SECTION 108 OF THE HOUSING AND
. COMMUNITY DEVELOPMENT ACT OF 1974, AS AMENDED, 42 U.S.c. ~5308
(Former HUD Section 108 Loan Contract No. B-94-MC-06-0539-A)
THIS 2005 COLLATERAL ASSIGNMENT OF SECTION 108 LOAN
DOCUMENTS BY THE CITY OF SAN BERNARDINO TO THE REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO ARISING UNDER A CONTRACT FOR
LOAN GUARANTEE ASSISTANCE UNDER SECTION 108 OF THE HOUSING AND
COMMUNITY DEVELOPMENT ACT OF 1974, AS AMENDED, 42 U.S.C. S5308 (the "2005
Collateral Assignment Agreement") is dated as of February 22, 2005, by the City of San
Bernardino, a municipal corporation (the "City") in favor of the Redevelopment Agency of the
City of San Bernardino (the "Agency"").
RECITALS
. A. The Secretary of Housing and Urban Development (the "Secretary of
HUD") and the City were previously parties to that certain Contract For Loan Guarantee
Assistance dated as of September 26, 2000, as amended by First Amendment To Contract For
Loan Guarantee Assistance, dated March 5, 2001, as further amended by an instrument dated as
of July 1, 2003, and as further amended by an instrument, dated as of August 16, 2004
(collectively, the. original contract by and between the City and HUD, together with all of the
amendments, are referred to as the "HUD Section 108 Loan Contract") pursuant to which the
City was authorized to loan up to One Million Eight Hundred Forty Thousand Dollars
($1,840,000.00) of Community Development Block Grant Program Section 108 monies to 303,
L.L.c., a California limited liability, company (the "Borrower") in connection with the
development of that community development project referred to as the "303 Third Street
Project".
4830-9341-8496.2
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B. The City has used the proceeds of the loan made by the Secretary ofHUD
to the City under the HUD Section ~08 Loan Contract (the "HUD Section. 108 Loan") to
originate a $1,840,000 loan by the City to the Borrower (the "City Section 108 Loan") under the
terms of that certain loan agreement entitled "2000 Community Development Block Grant
Program Section 108 Project Development Loan' Agreement (303 Third Street Project), dated as
of September 18, 2000, as amended (the "City Section 108 Loan Agreement") by and between
the City and the Borrower.
C. The Borrower intends to proceed with the completion of the "Borrower
Improvements Phase 1[", as this term is defined in the City Section 108 Loan Agreement, and to
install certain improvements, and thereafter transfer title in the completed "303 Third Street
Project" as'this term is defined in the City Section 108 Loan Agreement, to the County of San
Bernardino, in accordance with the terms of that agreement entitled "Agreement for Purchase
and Sale of Real Property", dated as of June 29, 2004 (the "County Purchase Contract") by and
between the Borrower and the County of San Bernardino.
D. In order to complete the 303 Third Street Project the Borrower has
requested that the City provide further accommodation to the Borrower and the Borrower has
requested that the City approve a further amendment to the City Section 108 Loan Agreement
which would authorize the Borrower to obtain senior construction loan financing for the 303
Third Street Project in an original principal senior construction loan amount not to exceed
Seventeen Million Five Hundred Thousand Dollars ($17,500,000).
E. In order to accommodate the request of the Borrower relating to the
proposed $17,500,000 senior construction loan for the completion of the 303 Third Street Ptoject
and the satisfaction of the Borrower's obligations under the County Purchase Contract, the City
has made arrangements with the Agency for the Agency to pJ:epay the HUD Section 108 Loan in
full, in consideration for the collateral assignment by the City of the "2005 Section 108 Assigned
Collateral Documents", described in Section 1 of this collateral assignment of Section 108 Loan
Documents.
NOW, THEREFORE, WITH REFERENCE TO THE ABOVE RECITALS AND
IN RELIANCE THEREON, AND FOR SUCH OTHER GOOD AND VALUABLE
CONSIDERATION THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY
ACKNOWLEDGED. THE CITY AGREES AS FOLLOWS:
Section 1.
(a) This 2005 Collateral Assignment Agreement is being executed and
delivered by the parties in furtherance of the terms and conditions of that certain agreement
entitled "2005 Loan Modification and Collateral Assignment Agreement and Consent to
Assignment", dated as of February 22, 2005, by and among the Borrower, the City and the
Agency.
(b) This 2005 cona~f'lIf Assignment Agreement affects the real property
more particularly described in Exhibit "A" attached hereto.
~830-9341-8~962
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C> (c) The Borrower has previously delivered to the City the City Section 108
Loan Collateral Documents, including without limitation the following:
(1) Loan Agreement, inc1udirtg modification letters, dated May 24, 2001, and
May 31, 2001 and amended dated as of July 1,2003, and August 16,2004
(the "City Section 108 Loan Agreement");
(2) $1,840,000.00 Promissory Note Payable To A Public Entity (the
"Borrower Section 108 Promissory Note");
(3) $1,840,000.00 Deed of Trust, Security Agreement, Assignment of Leases
and Rents and Fixture Filing (the "City Deed of Trust");
(4) Environmental Indemnity;
(5) Assignment ofInterest in Contracts and Permits;
(6) Personal Guarantee (Matich, Lemann and Brunk, as individuals, jointly
and severally);
(7)
$100,000 U.S. Bank: National Association Irrevocable Standby Letter of
Credit Number SLCPPDXOI064;
.
(8) $100,000.00 U.S. Bank National Association Irrevocable Standby ~
of Credit Number SLCPPDXOI065;
(9) 2005 Affirmation of Personal Guaranty
A fully executed original copy of each of the documents identified above is
hereby delivered to the Agency concurrently with the execution and recordation of this 2005
Collateral Assignment. Collectively, the documents described above and as hereby delivered to
the Agency are referred to as the "2005 Section 108 Assigned Collateral Documents". True and
correct copies of each of the 2005 Section 108 Assigned Collateral Documents are also on file
with the City as official records of the City.
Section 2. The City hereby grants, assigns and transfers to the Agency as
collateral for the payment bytbe-City of the obligationasariseirrfavoroftheAgencyunderthe
2005 Agency Loan Agreement as approved by City Council Resolution No.
dated February 22, 2005, each of the 2005 Section 108 Assigned Collateral Documents. The
City intends and declares that by this 2005 Collateral Assignment Agreement, the Agency, and
its successors and assigns, shall have the rights and powers and shall be entitled to all of the
benefits under the 2005 Section 108 Assigned Collateral Documents, to the. same degree and
extent as though the 2005 Section 108 Assigned Collateral Documents, and each of therri, had
() been originally made between the Borrower and the Agency.
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Section 3. For so long as no breach by the City has occurred under the: 2005
Agency Loan Agreement as approved by City Council Resolution No. , the City
reserves the right to make necessary or appropriate amendments and/or revisions to certain of the
2005 Section 108 Assigned Collateral Documents identified below; provided, however, that the
City shall not make or agree to any amendment or revision to the instruments identified below
which in the opinion of legal counsel acceptable to the Agency materially alters the term or
materially diminishes the value of any of such instruments as security for the repayment by the
City to the Agency of the Agency's loan to the City under the terms of the 2005 Agency Loan
Agreement:
City Section 108 Loan Agreement;
Borrower Section 108 Promissory Note;
City Deed of Trust;
Personal Guaranty;
Assignment of Interests in Contracts and Permits
[including without limitation modifications to Exhibit "C" of the
Assignment of Interests in Contracts and Permits: County Purchase
Contract]
Section 4. The City represents and warrants to the Agency that the City is
(and as to any other 2005 Section 108 Assigned Collateral Documents acquired hereafter, the
City shall be) and remain the sole o\'mer of the 2005 Section 108 Assigned Collateral
Documents, excepting only the security interest of the Agency therein as granted by this 2005
Collateral Assignment Agreement, and. further excepting the senior security interest of the
"Construction Lender", in certain of the' 2005 Section 108 Assigned Collateral Documents, as
may hereafter arise under Section 14.0 of the City Section 108 Loan Agreement.
Section 5. This 2005 Collateral Assignment Agreement shall be a conditional
assignment of the 2005 Section 108 Assigned Collateral Documents, and the Agency shall not
exercise its rights hereunder unless the Agency shall first give and serve upon the City written
notice that there has been a default under the 2005 Agency Loan Agreement beyond any
applicable cure period. The City expressly acknowledges and agrees that the Agency may
exercise its rights hereunder with or without: (i) taking possession of the property described in
the City Deed of Trust; (ii) initiating foreclosure proceedings with respect to the 2005 Section
108 Assigned Collateral Documents; or (Hi) taking any other action with tespect to the 2005
Section 108 Assigned Collateral Documents, including without limitation the receipt of the
proceeds of either of the Borrower letters of credit as assigned by the City to the Agency.
Section 6. Upon the delivery to the City by the Agenc)' of the notice of
default described in Section 5, the City shall not have any further interest in or with respect to the
2005 Section 108 Assigned CoITateral Documents, or any of them; provided however, that if the
City: (i) repays in full its obligation to the Agency under the 2005 Agency Loan Agreement; or
4830-9341-8496.2
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(ii) if the Agency elects to permit the City to cure a default under the 2005 Agency Loan
Agreement, then in either such case, the rights and interests of the City under the 2005 Section
108 Assigned Collateral Documents, and each of them, shall be reinstated.
Section 7. In the event of the occurrence of any default by the Borrower
under the 2005 Section 108 Assigned Collateral Documents, the City shall have the right, but not
the obligation, upon written notice to the Agency, to cure any such default of the Borrower and
take any action under the 2005 Section 108 Assigned Collateral Documents to preserve the
City's.rights under such 2005 Section 108 Assigned Collateral Documents.
Section 8. The City agrees to provide prompt written notice to the Agency of
any default by the Borrower under any of the 2005 Section 108 Assigned Collateral Documents.
Section 9. The City agrees that the Agency shall not be obligated to perform
or discharge any obligation, duty or liability under the 2005 Section 108 Assigned Collateral
Documents by reason of this 2005 Collateral Assignment Agreement until such time as the
Agency may exercise its election as provided in Section 5 hereof.
Section 10. The City agrees not to do, or suffer to be done, any of the
following acts without obtaining the prior written consent of the Agency: (i) cancel any of the
2005 Section 108 Assigned. Collateral Documents; (ii) surrender of the 2005 Section 108
Assigned Collateral Documents; (iii) waive or forgive any 2005 Section 108 Assigned Collateral
Documents; (iv) further assign any 2005 Section 108 Assigned Collateral Documents; (v) modify
any of the 2005 Section 108 Assigned Collateral Documents, except as set forth in Section 3,
without the' prior consent of the Agency which consent shall not be unreasonably withheld,
conditioned or denied; or (vi) fail to perform any obligation of the City under the 2005 Section
108 Assigned Collateral Documents.
Section II. All notices, requests, demands, and other communications under
this 2005 Collateral AssignmentAgreement shall be in writing and shall be deemed to have been
duly given (a) on the date of service if served personally to the party to whom notice is to be
given, (b) on the day of transmission if sent by facsimile transmission to the facsimile number
given below, and telephonic confirmation or receipt is obtained promptly after completion of
transmission, (c) on the day after delivery to Federal Express or similar overnight courier service
or the Express Mail service maintained by the United States Postal Service, or (d) on the fifth
day after mailing, if mailed to the party to whom notice is to be given, by first class mail,
registered or certified, postage prepaid, and properly addressed, return receipt requested. to the
party as follows:
If to City:
Office of the Mayor
City of San Bernardino
300 North "D" Street
San Bernardino, CA 92418
Tel: 909-384-5133
Fax: 909-384-5067
~830-9341-8496.2
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If to the Agency:
Economic Development Agency of the
City of San Bernardino
201 North "E" Street, Suite 301
San Bernardino, CA 92401
Tel: 909-663-1044
Fax: 909-888-9413
Section 12. From and after a default by the City under the 200S Agency Loan
Agreement, the City hereby irrevocably appoints the Agency as the City's attorney-in-fact to
exercise any and all of the City's rights in and or under any of the 200S Section 108 Assigned
Collateral Documents, to give appropriate receipts, releases and satisfactions on behalf of the
City in connection with the City's rights or delegations under any of the 200S Section 108
Assigned Collateral Documents, and to do any and all other acts in the name of the City or in its
own name with the same force and effect as if this 200S Collateral Assignment Agreement had
not been made. This power of attorney is coupled with an interest.
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THIS 2005 COLLATERAL ASSIGNMENT OF BORROWER SECTION 108
LOAN DOCUMENTS BY THE CITY OF SA1"J BERNARDINO TO THE REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO ARISIN'G lJNDER A CONTRACT FOR
LOAN GUARANTEE ASSISTANCE UNDER SECTION 108 OF THE HOUSING AND
COMMUNITY DEVELOPMENT ACT OF 1974, AS AMENDED, 42 U.S.c. ~5308 is dated as
of February 22, 2005, and is executed on behalf of the City by its authorized officers whose
signatures appear below.
Date:
ATTEST:
Rachel G. Clark, City Clerk
APPROVED AS TO FORM:
~~Mr~.
City Attorney.l".. Of':; c; A/ffd't;'
Date:
[NOTARY ACKNOWLEDGEMENT
OF ALL SfGNATURES ATTACHED]
CITY
City of San Bernardino. California
By:
Judith Valles, Mayor
CONSENT OF THE BORROWER
303, L.L.C., a Califomialimited liability company
hereby consents to the foregoing tennsofthe 2005
Collateral Assignment of Borrower Documents
Agreement
By:
Martin A. Matich, Manager
-- and --
CJJ, Inc., a California corporation, manager
By:
J, Ke.vinBnmk, its President
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ACCEPTANCE OF DELIVERY OF BORROWER
SECTION 108 LOAN COLLATERAL
AGENCY
Redevelopment Agency of the City of San
Bernardino
Date:
By:
Executive Director
APPROVED AS TO FORM:
(/)UI~/~ /.lllk.((J
Agency Q>unsel
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2005 ColJateral Assignment
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EXHIBIT · A"
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PARCEL NO.1:
THE WEST 22 FEET OF LOT 7. BLOCK 14. CITY OF SAN BERNARDINO, TN THE CITY OF SAN
BERNARDINO. COUNTY Of SAN BERNARDINO, STATE OF CALIPORNIA. AS PER PLAT
RECORDED IN BOOK 7 Of MAPS. PAGE(S) 1. RECORDS Of SAID COUNTY.
EXCEPTING TIlE NORTH 35 FEET THEREOF.
AlSO EXCEPTING RIGHT OF WAY OF SAN BERNARDINO. ARROWHlW> AND WATERMAN
RAILWAY CO., If SAME BE FOUND TO INCLUDE ANY PORTION Of SAID LOT 7.
PARCEL NO.2:
mAT PORTION Of LOT 6, BLOCK 14. CITY OF SAN BERNARDINO. IN THE CITY OF SAN
BERNARDINO. COUNTY OF SAN BERNARDINO. STATE OF CALIfORNIA. AS PER PLAT
RECORDED IN BOOK 7 OF MAPS, PAGE(S) I, RECORDS OF SAID COUNTY. DESCRmED AS
FOllOWS;
BEGINNING AT A POINT 22 FEET EAST OF THE NORTHWEST CORNER OF LOT 6; THENCE
SOUTH 148-1/2 FEET. MORE OR. LESS. TO THE SOUTH LINE OF LOT 6; THENCE EAST ALONG
THE SOUTH UNE OF SA.lD LOT 6, 5J .87 FEET. MORE OR LESS. TO THE WEST UNB Of LAN])
BELONGING TO THE SAN BERNARDINO LODGE NO. 146 OF THE INDEPENDENT ORDft OP ODD
FELLOWS AS PER. DEED RECORDED IN BOOK 'U' OF DEEDS, PAGE 415; THENCE NORTH 148-
1tZ.rWQREOltIJ:SS; TO"THE'NOIlTH LlNaOF LOT 6; THENCE WESI' SJ.87 FEET, MORBOR
LESS. TO THE POINT OF BEGlNNING.
PARCEL NO.3:
THAT PORTION OF LOT 6. BLOCK 14, OF THE CITY OF SAN BERNARDINO. IN nmClTY OF SAN
BER.'lfARDIN0. COUNTY OF SAN BERNARDINO, STATE OF CA1.JFOR.NlA. AS PER PLAT
RECulWB) IN BOOK 1 OF MAPS. PAGE(S) 1. RECORDS OF SAID COUNTY. DESCRIBED AS
FOllOWS:
BEGINNING AT A POINT 229.23 FEET WEST OF A POINT 41.25 FEET SOUTH OF THE
INTERSECTION OF THE CENTER LINE OP .C. STREET AND THIRD STREET Of SAID ClTYi
THENCE SOUTH 148.54 FEET; THENCE WEST 37.75 FEET; THENCE NORTH 148.54 FEET; mENCE
EAST 37.75 FEET TO THE POINT OF BEGINNING.
P1iRCBL.NO.4
PARCEL A:
All. THAT PORTION OF LOTS 6 AND 7, IN BLOCK 14. CITY OF SAN BERNARDINO, IN THE CITY
OF SAN BERNARDINO. COUNTY OF SAN BERNARDINO, STATE OF CAllFORNIA. AS PER PLAT
RECORDED IN BOOK 7 OF MAPS. PAGE(S) 1. RECORDS Of SAID COUNTY. DesCRIBED AS
FOllOWS:
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COMMENCING AT A POINT 87 FEET WEST AND 100.70 fEET soum OP"mE NORTHEAST
COllNBll OF SAID LOT 6; THENCE WEST 100.83 FEET. PAR.A1..LEL WITH THE NORTH I.JNE OF
SAID lDT 6; THENCE SOU11I47.14 FEET. PARALLEL W11'H THB EAST UNE OF SAID LOT 6;
. 'I1feNCE WBT ALONG THE NORTH LINE OF LOT 7; 85.35 FEET TO A POINT WHICH IS 25.5
FEET BAST OF THE NORTHWEST CORNER. OF SAID LOT 7; THENCE SOUTH PARALLEL wrm
THE WEST UNE OF SAID LOT. 35 FEET: THENCE WESr 3.S FEET: mENCE SOtTJ'R PAR.ALLEL
WITH THE WEST LINE OF SAID LOT. 88.54 FEET TO A POINT 2S FEET NORTH QF THE SOUTH
UNE OF SA1D LOT; THENCE EAST PARAU.EL WITH THE SOUTH LINE Of SAID LOT. 190.45
FEEl' TO' A POINT WHICH IS 87 FEET WEST OF THE EAST UNE OF SAID LOT: THENCE NORm
pARALLEL WITH THE EAST UNE OF LOTS 7 AND 6. 171.22 FEET. MORE OR LESS. TO THE
POINT OF BEGINNING.
PARCEL B:
A PERPETUAL RIGHT OF WAY rOR PASSAGE OF FOOT PASSENGERS. TEAMS. AUTOMOBILES.
TRUCKS AND OTHEll VEHICLES OVER AND ACROSS THE FOLLOWING PROPERTY:
THAT PORTION OF LOT 7. BLOCK 14. CITY OF SAN BERNARDINO. IN THE CITY OF SAN
BERNAIlDINO, COUNTY OF SAN BERNARDINO. STATE OF CAUFORNIA. AS PER PLAT
RECORDED IN BOOK 1 OF MAPS. PAGE(S) I, RECOR.DS OF SAID COUNTY. DESCIUBBD AS
FOLLOWS:
BEGINNING AT A POINT ON mE EAST UNE OF LOT 7. WHERE SAID EAST UNE IS
INTERSECTED BY THE NORTH LINE OF THE EXISTING RIGHT OF WAY OF PACIFIC EI..ECTRJC
lL\ILWAY CO.; THENCE WEST ALONG THE NORTH LINE OF SAID RIGHT OF WAY 81 FEET.
MORE OJlLESS. TO TRl: EASTtIN~ OF THE PROPERTY DSCRIBED AS PIdW~l NO. ], ABOVE:
mENCE NORTH 30 FEET; THENCE EAST 81FEE.:l: MOR.E OR LESS, TO TIm JrASTUNE OF-SAm
LOT 7; THENCE SOUTH 30 FEET. TO THE POINT OF BEGINNING. AS CONVEYED BY MARTHA
L. KIPUNGER, ET AL.. TO GEORGE M. COOLEY AS TRUSTEE. BY DEED RECORDED IN BOOK:
719. PAGE 130. OF DEEDS.
PARCELNO. s~
ALL THAT PORTION OF LOTS 6 AND 7. BLOCK 14. OF THE CITY OF SAN BERNARDINO. IN TIm
CITY OF SAN BERNARDINO. COUNTY OF SAN BERNARDINO, STATE OF CAUFORMA. AS PER
PLAT RECORDED IN BOOK 7 OF MAPS, P AGE(S) 1. RECORDS OF SND COUNTY, DESCRmED AS
FOLLOWS:
COMMENCING AT A POINT 81 FEET WEST OF THE NORTHEAST CORNER Of SAID LOT 6,-BEINO
THl!. NQII,'IBEASI CORNER. OF WHAT WAS KNOWN AS THE cox BUILDING; THENCE WEST
IttDNGTRE"NORTIf :tlNl!OFBEEu.ar 6;. "In-EEl: 1Q. ilfCBB TO THE NORTHEAST COllNElt
OF THE BUILDING FOR.MERLY OWNED BY THE INDEPENDENlORDElt OF onD' PBU.OWS;
THE."lCE smITH 100.70 FEET; THENCE EAST 100.83 FEEr PARALLEL WITH TIIE.NORTH UNE
OF SAID LOT 6; nIENCE NORTH 100.70 FEET TO THE POINT OF BEGINNING.
PARCEL NO.6;
THAT PORTION OF LOTS 6 AND 7. BLOCK. 14. CITY OF SAN BERNARDINO, IN THE CITY OF SAN
~ cetJm!Y. OF SAN liE1imrARDINO. s.n:m: OF"CAURlRNt\. AS PSt PLAt:
RECORDED IN BOOK 7 Or-MAPS. PAGE(S) 1. RECOR.DS OF SAID COUNTY. DBSClUBEIt AS
FOLLOWS:
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COMMENCING AT THE NORTHEAST CORNER OF SAID LOT 6; THENCE WEST 86 FEET. MORE
all WS. TO 'l1IE NORTHEAST COJt.NBll OF mE cox BUILDING, so CALLED, ALSO KNOWN
AS mE CREAMERY BUILDING: THENCE SOUTH TO THS SOl1TH LINE OF SAID LOT 1; THENCE
. EAST TO 'l1Ui SOumEAST COllNER, OF SAID LOT 1: THENCE NORm TO THE POINT OF
BEOINNING.
SAVING AND EXCEPTING THEJlEFROM THAT PORTION aMBRACED WITHIN RIGHT OF WAY
Of PACIFIC RAILWAY COMPANY.
PARCEL NO.7;
THE EAST 3.5 FEET OF TIlE WEST 25,5 FEET OF THE NORm 35 FEET OF LOT 7, BLOCK 14,
CITY OF SAN BERNARDINO. iN TIiE CITY OF SAN BERNARDINO, COUNTY OF SAN
BERNARDINO, STATE OF CAlJPORNIA. AS PER PLAT RECORDED IN BOOK 7 OF MAPS. P.AG'E(S)
1. RECORDS OP SArD CoUNTY.
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EXHIBIT II A ..
THAT PORTION OF BLOCK 2 OF THE CITY OF SAN BERNARDINO. COUNTY OF SAN
BEltNARDINO. STATE OF CAUrORNlA. AS PEl PLAT RECORDED IN BOOK 7 OF MAPS. PAGS(S)
1. RECORDS OF SAID COUNTY. LYING SOtmlERLy OF 2ND STUET, 82.5 FEET WIDe.,.
EASTERLY OF ADOWHEAD AV!NUE. 81.S FEEl WIDe. (fOIUGlLY ClAFTOtLSTREET),
WESTERLY OF MOUNTAIN VIEW AVENUE. 11.5 FEET WIDE, (fORMERLY CAMELSTJlEE11 AS
SHOWN ON SAID PLAT DESCRIBED ABOVE AND NORTHmtLy OF ICING STREET. (FORMERLY
BRlOOE STREE11 AS SHOWN ON BEDFORD BROTHJilS SUBDMStON PEll PLAT RECORDED IN
BOOK 8 OF MAPS. PAGE 30. RECORDS OF SAID COUNTY.
EXCEPT THAT PORnON OF SAID BLOCK 2. DESClUBED IN nm QUITCLAIM DEED FROM ROY
T. COE AND HBLEN C. CaE, HUSBAND AND WIPE TO GlIDRGE BDWAR.D COE AND ROYNA
MAE COBB RBCORDED AUGUST 24. 1967 IN BOOK 6873, PAGE 738. OFFICIAL RECORDS OF SAID
COUNTY. DESCJlIBED AS FOLLOWS:
THAT UNSUBDIVIDED PORTION OF LOTS 4 AND s. IN CITY BLOCK 2. AS RECORDED IN BOOK
7 OF MAPS. PAGE 1. OfFICIAL RECORDS OF SAN BERNARDINO COUNTY, CALIFORNIA,
DESCRlBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID LOT S. THENCE soum m a:El'~ THENCE
NORTHEASTERLY TO A POINT SO FEET SOUTH AND 184 FEET EAST OF THE POINT OF
BEGINNING: THENCE NORTHEASTBRL Y TO THE NORTHEAST CORNER OF SAID LOT 5; mENCE
WEST TO nm POINT OF BEGINNING.
^ PORnON OF SAID UNO IS ALSO SHOWN AS LOTS 1 THROUGH 10. INCLU.SIVE, OP BLOCK
4. AND THE ALLEY VACATED ADJACENT TO SAID LOTS. OF BEDFORD BROmERS
SUBDMSION. AS PER PLAT RECORDED IN BOOK 3 OF MAPS. PAGE 84 ~ BOOK 8 OF MAPS.
PAGE 30, RECORDS OF SAID COUNTY. ~
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Exhibit "B"
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2005 Loan Modification
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AFFIRMATION OF PERSONAL GUARANTEE
THIS AFFIRMATION OF PERSONAL GUARANTEE (the "Affinnation of Personal
Guarantee")Is made this of February, 2005 by J. Kevin Brunk, an individual,
Wilfrid C. Lemann, an individual, and Martin A. Matich, an individual (collectively, ihe
"GUarantors" and individually a "Guarantor") in favor of the Redevelopment Agency of the City
of San Bernardino, a public body corporate and politic, (the "Agency").
RECITALS
A. 303, L.L.C., a California limited liability company (the "Borrower"), has entered
into that certain agreement with the City of San Bernardino, a body corporate and politic (the
"City") entitled "2000 Community Development Block Grant Program Section 108 Program
Development Loan Agreement (303 Third Street Project)", dated as of June 1,2001, as amegded
(the "City Section 108 Loan Agreement"), for the purpose of furthering certain interests of the
City within the downtown area of the City of San Bernardino, and the City prior thereto entered
into a similar agreement with the U.S. Department of Housing and Urban Development ("HUD")
entitled "Contract for Loan Guaranty Assistance Under Section 1 08 of the Housing and
Community Development Act of 1974", as amended, 42 U.S.c. ~5308, dated September 26,
2000, as amended (the "HUD Section 108 Loan Agreement"). As a condition of the City
approving a loan of $1 ,840,000 to the Borrower, the City required Guarantors, and each of them,
to execute and deliver to City that Personal Guarantee of $1,840,000 Promissory Note of 303,
L.L.C., executed by said Guarantors, and each of them, on May 25,2001.
B. The Agency and the Borrower have previously entered into that certain agrc~ment
entitled "2000 O\\ner Participation and EDI Loan Agreement (303 Third Street Project)" dated
as of September 18, 2000 (the "OPA").
C. The City Section 108 Loan Agreement, the HUD Section 108 Loan Agreement,
and the OP A have been duly amended by the respective parties prior to the date hereof to reflect
changes in circumstances and modifications to the financing and development ofthe project.
D. As a result of the greater than anticipated costs required to cause the
redevelopment of the 303 Third Street Project by the Borrower, the Borrower has r~ested that
the City arrange for the Agency to repay the HUD Section 108 Loan and that in consideration
thereof, the Agency accept a collateral assignment from the City of all of the "Section 108 Loan
ColI::ltp.r::ll" as. this.temL is def'medJn the City Section 108 Loan Agreement, as security for the
repayment by the City to the Agency of a loan of Agency low- and moderate-income housing
funds in the amount of $ to the City under the tenns of the 2005 Agency Loan
Agreement by and between the City and the Agency (the "2005 Agency Loan Agreement")
which the City shall use and apply to prepay the HUD Section 108 Loan. Accordingly, an
agreement entitled "2005 Loan Modification and Collateral Assignment Agreement and Consent
to Assignment (the "2005 Loan Modification Agreement") is entered into by and between the
Borrower, Agency, and the City.
4837.3069'{)560,1 ,I
P \AlcndaslAacnoia Anxhmmts:'.E,,,hibds\2005'.OS-02.22 303 LLC-Atrlt'flWlOn o(Pcrsonal Guarani" (Ellhibit B to 2005 Loan Mod) doc
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E. As a condition to entering into said 2005 Loan Modification Agreement, City :..nJ
Agency have required that Guarantors, and each of them, execute and deliver this Affimlatiun of
Personal Guarantee re-affirming the Guarantors' obligations under said Personal Guaranke of
$1,840,000 Promissory Note of 303, LL.C. in favor of both the City and the Agency, should the
City assign or otherwise transfer its rights and benefits in said Personal Guarantee of $1,840,000
to the Agency.
NOW THEREFORE, in order to induce the City and the Agency to enter into said 2005
Loan'Modification Agreement, Guarantors, and each of them, warrant, covenant and affirm as
follows:
I. Guarantors. and each of them hereby covenant, affirm and warrant that the
obligations, warranties, covenants and conditions set forth in the Personal' Guarantee of
$1,840,000 Promissory Note of 303, L.L.C. are true and correct as of the date of this Affirmation
of Personal Guarantee, and will also inure to the benefit of the Agency should the City elect to
assign or otherwise transfer its rights and benefits under said Personal Guarantee to the Agency.
2. Guarantors, and each of them, certify and affirm that Guarantors, and each of
them, are not in default of any of the terms, conditions or obligations set forth in the Personal
Guarantee of $1,840,000 Promissory Note of 303, L.L.c. as of the date of this Affirmation of
Personal Guarantee.
3. All of the terms, obligations and conditions set forth in said Personal Guarantee
shall remain in full force and effect.
GUARANTORS
1. Kevin Brunk an individual
Wilfrid C. Lemann, an individual
Martin A. Matich, an individual
(Notary Acknowledgment)
4837.3069-O560~ 1,. ~ 2
p \."gendu\A,enda Allachmenls\...EdllbllS.,~OOS',1)5.02.::: l03 UC.Af1innaUDn ofPetJOnal GulfaMet (E.h5b~ B lO 2005 Loan Mod) dIx
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PERSONAL GUARANTEE OF 51,840,000 PROMISSORY NOTE
COVENANT OF SPOUSE
I, , as the wife of hereby expressly
guarantee the obligations of and I jointly and severally guarantee the
obligations of , a married man. I, the undersigned, as a married woman
executing the Personal Guarantee, hereby expressly agree that recourse may be had against my
community property only, and not against my sole and separate property, for all my obligations
under the Personal Guarantee.
Sign:
Date:
4837-3069-0560,1, ,3
P \Apodu'.A&enda ArtKhmems'.ExhibKSUOOS\OS-02.:;:2 303 LLC-Affirmauon of Personal Guarantee (Exhibit e 10 2005 Lo.. MoctJ dot
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** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Mecting 0.1< (0.1< Adopred), ~ It= .B 3D (fJ) "'..Iulioo' JOOySi
Vote: Ayes 1 Nays Abstain Absent
Change to motion to amend original documents 0 Companion Resolutions
NuU/Void After: days /
Resolution # On Attachments: 0
PUBLISH 0
POST 0
Note on Resolution of attachment stored separately: 0
RECORD W/COUNTY 0 By:
Date Sent to Mayor:
Date of Mayor's Signature:
Date of Clerk/CDC Signature:
Date MemolLetter Sent for Signature:
151 Reminder Letter Sent:
Date Returned:
2nd Reminder Letter Sent:
Request for Council Action & Staff Report Attached:
Updated Prior Resolutions (Other Than Below):
Updated CITY Personnel Folders (6413,6429,6433, 10584, 10585, 12634):
Updated CDC Personnel Folders (5557):
Updated Traffic Folders (3985, 8234, 655, 92-389):
Copies Distributed to:
Animal Control
City Administrator
City Attorney
Code Compliance
/
EDA
Facilities
Finance
Fire Department
Revised 12/18/03
Reso. Log Updated:
Seal Impressed:
,
y
Not Returned: 0
Yes No By_
Yes No By_
Yes No By_
Yes No By_
Yes No By_
Information Services 0
Parks & Recreation 0
Police Department 0
Public Services 0
Water Department 0
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
,J~-J()( ,
Meeting Date (Date AdoPted):~ Item # 1<':)'0 (IV Resolution # W~~OS> g
Vote: Ayes -Q Nays Abstain Absent
Change to motion to amend original documents D Companion Resolutions
Null/Void After: days /
Resolution # On Attachments: D Note on Resolution of attachment stored separately: D
PUBLISH D
POST D
RECORD W/.COUNTY D
By:
Date Sent to Mayor:
Date of Mayor's Signature:
Date of Clerk/CDC Signature:
Date Memo/Letter Sent for Signature:
151 Reminder Letter Sent:
Date Returned:
2nd Reminder Letter Sent:
Reso. Log Updated:
Seal Impressed:
Not Returned: D
Request for Council Action & Staff Report Attached:
Updated Prior Resolutions (Other Than Below):
Updated CITY Personnel Folders (6413,6429,6433, 10584, 10585, 12634):
Updated CDC Personnel Folders (5557):
Updated Traffic Folders (3985, 8234, 655, 92-389):
Copies Distributed to:
Animal Control
City Administrator
City Attorney
Code Compliance
Development Services
Others:
(
D
D
D
D
D
EDA
Facilities
Finance
Fire Department
Human Resources
D
D
D
D
D
D
Yes No By_
Yes No By_
Yes No By_
Yes No By_
Yes No By_
Information Services D
Parks & Recreation D
Police Department D
Public Services D
Water Department D
Notes:
Ready to File: _ Date:
Revised 12/18/03
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Page 1 of 1
Gomez_Ei
From: Wasana Chantha [wchantha@sbrda.org]
Sent: Friday, July 01, 2005 3:12 PM
To: Gomez_Ei
Subject: FW: COC Meeting 2/22/05, Item No. R30 (303 West Third Street)
Per your request and for your file.
Wasana
From: Mike Trout
Sent: Wednesday, June 22, 2005 10:27 AM
To: 'Clark_Ra'
Cc: Gary Van Osdel; 'Medina_Sa'; Wasana Chantha
Subject: COC Meeting 2/22/05, Item No. R30 (303 West Third Street)
Rachel,
On February 22, 2005 the M/CC and the COC adopted resolutions (2005-54 and COC/2005-8 respectively) approving
and authorizing the execution of documents concerning the 303 West 3rd Street project. Once the resolutions were
adopted circumstances concerning the deal changed which no longer required the execution of the various documents.
Therefore, the documents have not been executed and are no longer necessary.
Should you have any additional question, please feel free to contact me.
Mike Trout
EOA Project Manager