HomeMy WebLinkAbout1983-317
San Bernardino (Millc~eek)
60,009-14A-'2
'I
RESOLUTION NO. 83-317
2 RESOLUTION OF THE MAYOR ANTI COMMON
3 COUNCIL OF THE CITY OF SAN BERNAR-
4 DINO, CALIFORNIA, APPROVING A
5 CERTAIN TRUST INDENTURE rrnICH
6 CREATES A TRUST ESTATE p~ MAKES
7 CERTAIN PROVISIONS THEREFOR AND
8 WHICH AUTHORIZES THE ISSUANCE OF
9 ITS CITY OF SAN BERNARDINO, CALI-
10 FORNIA, INDUSTRIAL DEVELOPMENT
11 REVENUE BONDS, SERIES 1983A (MILL-
12 CREEK PROJECT), FOR THE PURPOSE OF
13 PROVIDING FUNDS FOR THE ACQUISITION
14 AND CONSTRUCTION OF SUCH PROJECT;
15 APPROVING A CERTAIN LOAN AGREEMENT
16 WITH MILLCREEK, A LIMITED PARTNER-
17 SHIP; APPROVING A COMMITMENT AGREE-
18 MENT M~D AUTHORIZING ITS EXECUTION;
19 AUTHORIZING SUCH FURTHER ACTION AS
20 MAY BE NECESSARY TO CONCLUDE THE
21 ISSUANCE, SALE AND DELIVERY OF
22 SUCH BONDS; AND MAKING CERTAIN
23 FINDINGS AND DETERMINATIONS IN
24 CONNECTION THEREWITH
25 (MILLCREEK PROJECT)
26 rlHEREAS, the City of San Bernardino (the "City")
27 is a "home rule city" duly organized and existing under and
28 pursuant to a Charter adopted under the provisions of the
29 Constitution of the State of California; and
30 WHEREAS, pursuant to its home rule powers, the
31 City duly and regularly enacted Ordinance No. 3815 (the
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60,009-14A-2
1 "Ordinance") to finance various types of projects, as defined
2 in the Ordinance, and to issue its special revenue bonds for
3 the purpose of paying the cost of financing such projects;
4 and
5 WHEREAS, there has been filed with the City an
6 Application (the "Application") pursuant to the provisions
7 of the Ordinance by Millcreek, a Limited Partnership (referred
8 to herein as the "Company"), requesting the issuance of
9 revenue bonds for the purpose of financing the cost and
,.
10 expense of the acquisition and construction of a certain
11 Project, as more particularly described in said Application;
12 and
13 WHEREAS, the Application has been reviewed and the
14 plan of financing has been found to comply with the spirit,
15 intent and provisions of the Ordinance, as amended, and it
16 has been determined that the City should proceed with the
17 financing; and
18 WHEREAS, the Mayor and Common Council must now
19 approve and authorize the execution of various documents in
20 connection connection with the issuance, sale and delivery
21 of such Bonds.
2
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1 NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF
2 THE CITY OF SAN BERNARDINO DO HEREBY FIND, RESOLVE, DETERMINE
3 AND ORDER AS FOLLOWS:
4
Section 1. The recitals set forth hereinabove a~~
5 true and correct in all respects.
6
Section 2. The City hereby determines that the
7 Project as proposed by Millcreek, a Limited Partnership is
8 in compliance with the purposes of the Ordinance and with
,.
9 the criteria established pursuant thereto.
10
Section 3. It is likp.ly that the undertaking of
11 the Project by the City will be a substantial factor in the
12 accrual of public benefits from the use of the Company's
13 facilities as proposed in the Application.
14
Section 4. The financing of the project as
15 described above and as described in the Application is
16 hereby authorized and approved.
17
Section 5. The issuance by the City of San
18 Bernardino, California, of the "City of San Bernardino,
19 California, Industrial Development Revenue Bonds, Series
3
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60,009-14A':'2
1 1983A (Millcreek Project)" in an amount not to exceed
2 $1,225,000 and at an average interest rate not to exceed 9%
3 per annum is hereby approved. The Bonds shall be issued in
4 substantially the form and in accordance with the terms of
5 the Trust Indenture, between the City and Security Pacific
6 National Bank, attached hereto as "Exhibit A" and incorporated
7 herein by reference, with such corrections, changes, modifi-
8 cations, additions or deletions as may be approved and
9 recommended by the City's Bond Counsel, James Warren Beebe,
10 A Law Corporation, to the Mayor, or, in his absence or
,.
11 disability the Mayor Pro Tern, and approved by him, his
12 execution thereof to be conclusive evidence of his approval;
13 and the Mayor, or, in his absence or disability the Mayor
14 Pro Tern, and City Clerk are hereby authorized and directed
15 to execute such final Trust Indenture when the same shall
16 have been prepared for execution, with the seal of the City
17 to be affixed thereto. The Bonds shall be issued and sold
18 to Beverly Hills Savings and Loan Association (the "Under-
19 writers") upon such terms and conditions as are provided in
20 the Commitment Agreement attached hereto as "Exhibit B" and
21 incorporated herein by reference.
22
Section 6. The Bonds shall be special obligations of
23 the City and shall not be deemed to constitute a debt or
4
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60,009-14A-2
1 liability of the City or a pledge of the faith and credit of
2 the City, but shall be payable solely from the payments
3 received under the terms of the Loan Agreement, described
4 hereinafter. The Issuance of such Bonds shall not directly
5 or indirectly or contingently obligate the City to levy or
6 pledge any form of taxation whatsoever therefor or to make
7 any appropriation for their payment.
8
Section 7. A form of Loan Agreement has been
9 presented to the Mayor and Common Council and has been
"
10 reviewed. The Mayor and Common Council, acting for and on
11 behalf of the City hereby approve the Loan Agreement with
12 the Company, substantially in the form attached hereto as
13 "Exhibit C" and incorporated herein by reference, with such
14 corrections, changes, modiEications, additions or deletions
15 as ::Iay be approved and recommended by the City's Bond Counsel,
16 James Warren Beebe, A Law Corporation, to the Mayor, or, in
17 his absence or disability, the Mayor Pro Tern, and approved
18 by him, his execution thereof to be conclusive evidence of
19 his approval; and the Mayor, or, in his absence or disability,
20 the Mayor Pro Tern and City Clerk are hereby authorized and
21 directed to execute such final Loan Agreement when the same
22 shall have been prepared for execution with the seal of the
23 City to be affixed thereto.
5
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60,009-14A-'2
1
Section 8. The Commitment Agreement has been
2 presented to the Mayor and Common Council and has been
3 reviewed. The Mayor and Common Council, acting for and on
4 behalf of the City, hereby approve the Commitment Agreement,
5 substantially in the form attached hereto as "Exhibit B" and
6 incorporated herein by reference, with such corrections,
7 changes, modifications, additions or deletions as may be
8 approved and recommended by the City's Bond Counsel, James
9 Warren Beebe, A Law Corporation, to the Mayor, or, in his
10 absence or disability, the Mayor Pro Tem, and approved by
11 him, his execution thereof to be conclusive evidence of his
12 approval; and the Mayor, or, in his absence or disability,
13 the Mayor Pro Tem and City Clerk are hereby authorized and
14 directed to execute such final COITIDitment Agreement when the
15 same shall have been prepared for execution, with the seal
16 of the City to be affixed thereto.
17
Section 9. The Mayor, or, in his absence or
18 disability, the Mayor Pro Tem, the City Clerk, the Project
19 Coordinator and such other City officers and employees as
20 are appropriate are authorized and directed to execute such
21 other documents and take such further action as shall be
22 consistent with the intent and purpose of this Resolution
6
#333.7(et)
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60,009-14A":2
1 and shall be needed to conclude the issuance, delivery and
2 sale of the Bonds.
7
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60,009-14A-2
1 I HEREBY CERTIFY that the foregoing resolu-
2 tion was duly adopted by the Mayor and Common Council
3 of the Ci.ty of San Bernardino at a regular meeting
4
thereof, held on the 19th day of
SeDtewber
, 1983,
5 by the following vote, to wit:
6 AYES: Councilmen Castaneda, Reilly, Hernan(l.ez,
7 ~1arks , Quiel, Frazier, strickler
8 NOES: None
9 , ABSENT: None
10 ABSTAIN: None
11 _ 411(!/~Af
12 ~~ Clerk
13 The foregoing resolution is hereby approved
14
thi s 2/~ day of
September
15
16
17
18 Approved as to form:
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~r, BEVERLY HILlS S,AYINGS
,-.
June 6, 1983
MILL CREEK, A California Limited Partnership
1400 Bristol st. North, Suite 245
Newport Beach, California
Attn: Charles L. Buchanan
(
Re: BHS Loan No. 09-50892-0
Mill Creek Business Park
San Bernadino, California
Gentlemen: .
"'---
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Based upon the information $et forth in the loan application
received from you, Beverly Hills Savings and Loan Association
("Lender"), subject to compliance with the term~ and conditions
set forth below, hereby agrees to make a real estate loan
(referred to hereinafter as the "Loan") on the security of 2
multi-tenant industrial buildings (the "Project") located on
certain real property situated in San Bernadino County,
California, which is more particularly described on Attachment I
(attached hereto and made a part hereof (the "Property"). You
. 19ree to borrow from Lender the Loan.
INJRt- A
\fERE ~
6-/5-1"5
2. The Loan shall be evidenced by a promissory note (the
"Note") and secured by a (i) deed of trust (the "Deed of Trust")
on the Property in favor of Lender, executed by all persons
deemed by Lender to have an interest in the Property, including
spouses, which deed of trust shall be subject only to those
matters previously approved by Lender, (ii) a security instrument
consituting a security interest in the personal property subject
to the Deed of Trust, and (iii) an assignment of rents on the
Property.
1. The amount of the Loan
borrower (the "Borrower") shall
Limited Partnership.
shall be $1,225,000. The
be Mill Creek, A California
3. (a) The term of the Loan shall be five (5) years,
commencing on the date of recordation of the Deed of Trust.
27271 Las Ramblas. Mission Viejo, California 92691. Telephone (714) 831-6636 (213) 748-6516
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'Wt BEVERLY HILlS SAVINGS
Mill Creek Business Park
June 6, 1983
Page 2
4. The interest rate on the Note shall be equal to nine
percent (9%). This rate will remain fixed for five years from
the Note date. However, in no event is the rate to be less than
nine percent (9%) per annum.
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5. (a) Principal and interest on the Loan shall be paid in
combined monthly installments (the "Monthly Installment Payment")
equal to $9,861.25 computed as set forth below. Such Monthly
Installment Payment shall be payable commencing on the first
(1st) day of the month following the recordation of the Deed of
Trust and continuing on the first (1st) day of each calendar
month thereafter until the last day of the term of the Loan, on
which latter date the entire unpaid balance of the principal sum
of the Loan and interest thereon shall be due and payable.
(b) The Monthly Installment Payment shall be equal to
(i) a prinGipal reduction payment which shall be credited against
theramount of unpaid principal as of the date of recordation of
the Deed of Trust, calculated on the basis of a 30-year
amortization schedule such that the amount of unpaid principal as
of the date of recordation of the Deed of Trust would be fully
amortized over 30 yea~s at an interest rate of nine percent (9%)
per annum, paid monthly and (ii) interest upon unpaid principal
calculated in arrears at the rate of nine percent (9%) per annum.
(
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6. Borrower may prepay the unpaid principal due under the \
Note, together with accrued interest thereon, in whole, but not I
in part, by payment of a prepayment premium or charge of 5% )
grading down 1% per year.
( ( 7. Borrower shall pay Lender a loan fee of $36,750, which~--=:::>
, L fee shall be paid at the time of recordation of the loan.
8. (a) This commitment shall not become effective until
Borrower shall deposit with Lender a good faith deposit in the
amount of $5000 as evidence of Borrower's intention to accept the
Loan. In the event the Loan is recorded prior to September 15,
1983, this deposit, without interest, shall be refunded to
Borrower. In the event that this commitment is accepted and in
the event that the loan fails to record prior to September 15,
1983, other than by reason of default of Lender hereunder, then
this commitment shall terminate, and the deposit shall be
retained by Lender as compensation for Lender's time, effort, and
expense, including, without limitation, preparation of this
commitment and efforts taken to assure availability of funds
committed when and as needed. Borrower understands and agrees
that it is impracticable and extremely difficult for Lender to
determine the actual cost and expense of preparing this
commitment, and that the foregoing sum constitutes a reasonable
estimate of such expenses.
'" BEVERLY HILlS SAVINGS
Mill Creek Business Park
June 6, 1983
Page 3
(b) The fee for this commitment is $12,225.* Said
commitment fee shall be deemed due and payable, fully earned,
nonrefundable upon the acceptance hereof. The commitment fee
shall be retained as compensation for Lender's preparation of
this commitment and efforts taken to assure availability of funds
committed when and as needed. Borrower understands and agrees
that it is impracticable and extremely difficult for Lender to
determine the actual cost and expense of preparing this
commitment, and that the foregoing sum constitutes a reasonable
estimate of such expenses. The commitment fee shall be
(nonrefundable in its entirety, regardless of whether the Loan is
ictually consummated. *The $5000 good faith deposit may be
applied to the commitment fee. Also, this commitment fee can be
applied to the loan fee at loan closing.
9. Prior to or concurrent with the funding of the Loan,
Borrower shall pay the Lender all costs in connection with the
closing of the Loan, including but not limited to, charges for
title examination, title insurance premiums, recording and filing
fees, escrow fees, closing costs, surveys, notary fees,
attorney's fees, if any, appraisal report and creClit report fees,.'
and any other appropriate charges incurred by Lender.
10. Lender reserves the right to cancel this commitment and
to terminate its obligation hereunder in the event that any of
the following shall occur:
( (a) Insufficiency of title or lack of approval by
Lender or its counsel of the title, or of any documents required
(b) Damage to the Project which shall not have been
repaired or restored to the reasonable satisfaction of Lender at
the time of closing;
(c) Failure of Borrower to comply with any of the
provisions or conditions applicable to this commitment;
(d) Filing by or against Borrower or, in the event
Borrower is partnership, any general partner of Borrower, of any
petition in bankruptcy or insolvency or for reorganization or for
the appointment of a receiver or trustee or the making of an
assignment for the benefit of creditors or the filing of a
petition for arrangement, and which petition is not withdrawn or
dismissed, or which appointment, assignment or arrangement is not
cancelled and terminated prior to the expiration of this
commitment;hereunder to be delivered to Lender at or prior to
closing;
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1!tBEVERLY j-HUS SAVINGS
Mill Creek Business Park
June 6, 1982
Page 4
(e) The taking of any part of the Property in
condemnation or other like proceedings;
(
(f) Any change subsequent to this commitment, deemed
by Lender to be material or substantial, in the assets, net worth
or credit standing of Borrower or in other facts relating to the
Loan, or the taking of a judgement against Borrower which in the
sole discretion of Lender materially affects its credit standing.
(g) Threatened litigation by or against Borrower or the
filing by or against Borrower of any litigation which in the sole
discretion of Lender materially affects its credit standing.
11. The closing of the Loan is to be in accordance with the
requirements of our legal counsel and the policies of Lender and
shall be in conformity with all applicable laws and regulations
in ~ffect at the time of closing, notwithstanding any of the
provisions of this commitment.
12. This commitment may not be transferred or assigned by
operation of law or otherwise without the approval of Lender, and
any attempted assignment in violation of this provision shall be
null and void. A transfer or assignment by any general partner
of Borrower of its interest therein shall be deemed an assignment
hereof.
13. Lender's commitment to fund the Loan is expressly
(
(a) Satisfactory completion of the Project in
accordance with all applicable laws and regulations relating
thereto, including any and all zoning requirements affecting
Property;
Q~
the
(b) Delivery to Lender of a certification of licensed
engineer or architect, approved by Lender, that the Project has
been completed in accordance with all applicable zoning and
building codes and requirements of governmental
(c) Delivery to Lender of an opinion of counsel of
Borrower's attorney (at Lender's option) to the effect that the
Loan documents have been duly executed and are valid, legally
binding and enforceable against Borrower, and as to such other
matters as shall be required by Lender, which opinion shall be in
form acceptable to Lender and its counsel; authorities;
conditioned upon:
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't' BEVERLY HILlS SAVINGS
Mill Creek Business Park
June 6, 1983
Page 5
(
(d) If Borrower is a corporation, delivery to and
approval by Lender of true and correct, certified copies of
Borrower's articles of incorporation and by-laws and a resolution
of Board of Directors authorizing Borrower to obtain the Loan and
specifying the individuals or officers who are authorized to sign
the documents evidencing the Loan:
(e) If Borrower is a partnership, delivery to and
approval by Lender of a true and correct, fully-executed copy of
the partnership agreement, together with the statement of general
partnership or certificate of limited partnership as recorded in
the county or counties in which the Property is located:
(f) Delivery to and approval by Lender of a current ~~:
appraisal of the Project by an appraiser approved by Lender V_
showing a value of not less than $1,550,000;
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(g) Delivery to and approval by Lender of
subordination agreements and estoppel certificates in a form
satisfactory to Lender executed by all tenants in the Project as
of no more than thirty (30) days prior to recordation of the
Loan;
(
(h) Occupancy of the Project under leases approved by
Lender sufficient to generate, as determined by Lender in its
sole discretion, an annual gross rental income of at least
$161,849 from not more than 45,218 square feet: at average rents
of 29.8~ per month.
~
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14. This commitment shall expire on ~15, 1983, and OLMtr-
Lender shall have no obligation to fund after such date. After
the expiration date of this commitment, Lender shall be released
of any and all obligations, claims and liabilities in any way
arising from and related to this commitment.
(i) Delivery to and approval by Lender of a
certificate of occupancy for the Project.
15. The obligations of Lender under this commitment are
subject to compliance with each of the provisions of the
"standard Loan Terms and Conditions" set forth in Attachment 2
attached hereto and made a part hereof, which provisions are
incorporated herein by this reference.
"'BEVERLY HILLS SAVINGS
Mill Creek Business Park
June 6, 1983
Page 6
16. Special Conditions:
(a) Signed leases from all tenants shown on Leases.
Analysis (Attachment 3).
(b) Assignment and subordination of all existing
leases.
(c) All tenants must be in occupancy and paying rent
according to rent roll, to be verified by underwriter.
(
(d) If all space has not been completed then $10.00
P.S.F. must be held back to complete tenant improvements on
office space.
,..
(e) Written estoppel certificates will be required
from all tenants stipulating startup date and rent specifications
on T.I. work.
(f) Borrower's satisfaction of all necessary
requirements to make this Industrial Development Bond Financing.
(g) This loan is subject to verification of Lender's
tax exempt status and approval of BHS counsel of all documents
relating to the Industrial Development Bond Financing.
(
ff BEVERLY HILI.S SAVINGS
Mill Creek Business Park
June 6, 1983
Page 7
Please indicate your acceptance hereof by signing and returnin9
the enclosed copy of this letter, together with the commitment
fee, on or before June 15, 1983. This letter and the attachments
incorporated herein set forth the complete understanding of
Lender and Borrower with respect to this matter and supersedes
any previous agreements, whether oral or in writing. Any
changes, amendments or modifications hereof must be made in
writing and acknowledged by the parties hereto.
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BEVERLY HILLS SAVINGS
AND LOAN ASSOCIATION
By: ~j/~
Anita H. Duggin'
Vice President
Agreed and accepted this 1'1
BORROWER:
day of h--:7?-f'.
/
, 1983.
C BY:
BY:
William K. Davis
~ BEVERLY HILLS SAVINGS
ATTACHMENT 1
Description of Property
Parcel 1 of Parcel Map No. 5411 in the City of San Bernadino,
County of San Bernadino, State of California, as per map recorded
in Book 52, pages 97 and 98 of Parcel Maps, in the office of the
County Recorder of said County.
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"BEVERLY HILLS SAVINGS
ATTACHMENT 2
BEVERLY HILLS SAVINGS AND LOAN ASSOCIATION
Standard Loan Terms and Conditions
The following provisions apply to
commitment to which they are attached.
defined or used in the loan commitment
meaning when used herein.
1. The Note and Deed of Trust, and all other instruments,
including without limitation, guarantees, security agreements,
financing statements, leases and assignments to Lender of
Borrower's interest therein, which Lender shall require to
consummate the Loan, shall be in form satisfactory to Lender and
its counsel.
and are part of the loan
Terms and designations
shall have the same
The commitment is conditioned upon there being, at the time
of the closing of the Loan, no secondary or supplementary
financing, or any other lien, charge, or security interest upon
or affecting the Property, or any agreement to grant any such
interest, other than liens or charges that will be discharged
from the proceeds of the Loan.
2. Plans and specifications for and all other required or
pertinent instruments regarding the Property shall be
satisfactory in every respect to the Lender. There shall be no
violation of zoning ordinances, building codes, restrictions or
other pertinent matters, nor present or future encumbrances not
shown by the public records. Lender may require than an
appraisal be made by an appraiser satisfactory to it, and that
such appraisal report be acceptable and satisfactory to Lender.
3. The Borrower shall be required to acquire and maintain,
at Borrower's expense, hazard insurance with fire and extended
coverage in an amount equal to the greater of (i) the Loan amount
and (ii) the full insurable value of the Property and all
improvements thereon, which policy should include a 438 BFU
endorsement. In addition, Lender shall be furnished with a
comprehensive liability and property damage insurance policy
naming Lender as an additional insured in the face amount of at
least 1,5000,000..............., together with evidence of
worker's compensation insurance coverage. The amounts, policy
forms, endorsements and companies issuing such insurance shall be
satisfactory to Lender in its sole and absolute discretion.
(1)
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~ BEVERLY HILLS SAVINGS
4. Lender shall be furnished with a lender's form of ALTA
title insurance policy for the Loan, and the title, title
insurer, amounts, endorsements and types of title insurance
coverage must be approved by Lender before close of the Loan
hereunder. Such policy shall indicate that the Borrower
possesses a good and marketable fee simple title and shall insure
Lender in the principal amount of the Loan as possessing a first
security interest in the Property, free and clear of all
encumbrances or other interests and free of encroachments of any
kind, subject only to such exceptions, if any, as shall have been
previously approved by Lender. Borrower shall pay the cost of
such title policy, including the cost of any endorsements
required by Lender thereto during the term of the Loan.
5. Lender may require that reserves be established by the
Borrower with the Lender for real property taxes and for
insurance of the Property, so that the amount in the reserves,
coupled with monthly payments required to be made by the Borrower
to be applied to such reserves (which payments shall be in
addition to payments on principal and interest), will be
sufficient to pay in full prior to the due date thereof all real
property taxes and all required insurance coverage affecting the
Property.
6. The loan instruments shall include provisions pertaining
to charges for late payments on and for prepayment of the Loan,
and for other related expenses or costs. The Deed of Trust shall
also provide that the Lender may declare all sums secured thereby
immediately due and payable in thE' event of sale, transfer Or
further encumbrance of the Property, or default under the Deed of
Trust or the Note.
7. If the improvements on or to be placed on the Property
have been or are to be newly constructed or newly remodeled,
Lender shall not be required to disburse any funds pursuant to
this commitment, or otherwise to close the Loan, unless and until
it is satisfied that the construction has been fully completed,
that there are no labor, material or other liens or claims
against the Property, that all sums due and owing to contractors,
laborers and suppliers have been paid and satisfied in full, that
all appropriate lien waivers have been obtained, and that the
period for filing liens has expired. Completion of construction
shall mean and include grading and landscaping, adequate sewer,
water, gas, electrical and other utility facilities, along with
necessary public streets, sidewalks, draining and curbing in the
site area and other related improvements, both onsite and
offsite, public and private.
(2)
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"BEVERLY HILLS SAVINGS
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8. If the obligation of Lender under this commitment does
not take effect until future construction of improvements upon
the Property have been completed, the following provisions shall
also apply:
(a) The improvements on the Property shall be completed
in accordance with plans and specifications submitted to and
approved by Lender. There shall be no material change or
modification unless approved by Lender. Lender upon request
shall be furnished by the interim construction lender with
progress reports as to the construction.
(b) A certification from the inspecting architect or
consulting engineer who made construction inspections, which
states that the building and improvements have been constructed
in accordance with all applicable zoning and building codes and
the approved plans and specifications and that the structural
design and mechanical specifications are adequate for the
operation of the Project shall be submitted to Lender. Borrower
shall be responsible for the cost of the certification required
by this paragraph.
(
(c) The improvements shall be deemed to have been
completed in accordance with this commitment if and when all work
fully satisfies all applicable requirements of law and all
applicable building and use covenants and restrictions, public as
well as private, and Lender has been furnished with all
certificates of approval, acceptance or compliance of all of the
city, county and state departments or authorities having
jurisdiction over the Property.
9. Lender shall not be obligated to fund the Loan if, at
the time the Lender is called upon to make the Loan hereunder,
any then existing deed of trust affecting the Property is in
default, or any event shall have occurred which, subject to
either the passage of time or giving of notice, or both, would
result in a default under such deed of trust.
10. So long as either this commitment or the Loan remains in
force and effect, Lender shall have the right at all reasonable
times to inspect the Property and all applicable books and
financial records related thereto.
11. All taxes an assessments which are due and payable must
be paid in full on the Property prior to the closing of the Loan.
12. All leases and other occupancy agreements in existence
at the time of closing shall be approved by Lender and shall be
assigned to Lender as additional security for the Loan; and/or,
at Lender's sole option, be subordinate to the Loan.
(3)
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W~EV-ERLY 81LLS SAVI!\.TGS
13. Borrower shall grant Lender to the extent of Borrower's
equity, a security interest in the personal property located at
and/or used in the operation of the improvements on the Property,
and execute any financing statement necessary to perfect such
security interest in accordance with the laws of the state of
California. In tne event that any such personal property is the
subject of a lease, Lender reserves the right to approve the
leasing arrangements and/or to require Borrower to assign its
interest therein to Lender.
14. Annual operating statements of the Project and financial
statements of the Borrower, audited by a certified public
accountant, if required by Lender, shall be submitted to Lender
within forty-five (45) days of the end of each fiscal or
operational year.
15. Lender reserves the right to sell or transfer its entire
interest or participating interest or interests in the Loan.
16. (a) Time shall be of the essence in this commitment.
No waiver of any term or provision of this commitment, and no
waiver of any default or failure of compliance, shall be
effective unless in writing. No waiver furnished in writing
shall be deemed a waiver of any future condition. All notices
hereunder shall be in writing.
(b) This commitment supersedes any and all prior
commitments, agreements, provisions, offers and statements,
whether written or oral, made by Lender. No change, amendment or
modification hereof, nor consent or approval required of Lender
shall be valid unless it is made in writing and signed by a duly
authorized officer of Lender.
(c) The designations of the parties and any pronouns
referring to any party, wherever used, shall be so construed as
to include the plural as .well as the singular number, and
whenever the context permits, any gender shall include all other
genders and the singular number shall include the plural
(4 )