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HomeMy WebLinkAbout09- Development Department DEV*' LOPMENT DEPARTMENT G -HE CITY OF SAN BERNARDINO REQUEST FOR COMMISSION/COUNCIL ACTION E FROM: KENNETH J. HENDERSON SUBJECT: SAN BERNARDINO Executive Director CIVIC LIGHT OPERA DATE: August 31, 1993 ----------------------------------------------------------------------------------------------------- Synopsis of Previous Commission/Council/Committee Action (s): On August 20, 1984, the Community Development Commission approved a Disposition and Joint Development Agreement, authorizing sale of the California Theatre for the sum of $150,000. --------------------------------------------------------------------------------------------------- Recommended Motion (s): (Community Development Commission) MOTION: That the Community Development Commission approve Amendment Number One (1) to the Disposition and Joint Development Agreement between the Redevelopment Agency and the San Bernardino Civic Light Opera Association and approve a loan in the amount of $200,000. Further, that the Chairman and Executive Director be authorized to execute all documents in connection with said transaction. A istrator KE NE H I HFI&DERSON Executive Direct ----------------------------------------------------------------- ---- Contact Person(s): Kenneth J. Henderson/Emily Won& Phone: 5081 Project Area(s): Central CLty_North (CCN) Ward(s): One (1) Supporting Data Attached: Staff Report FUNDING REQUIREMENTS: Amount: $200,000 Source: Bond Proceeds Budget Authority: Requested ------------------------------------------------------------------------------------------------------------------------ Commission/Council Notes: ----------------------------------------------------------------------------------------------------------- KJH:E1vIW:lag:clo.cdc COMMISSION MEETING AGENDA MEETING DATE: 09/07/1993 Agenda Item Number: DEVELOPMENT DEPARTMVNT STAFF REPORT --------------------------------------------------------------------------------------------------- San Bernardino Civic Light Opera BACKGROUND The San Bernardino Civic Light Opera Association (CLO) currently owns and operates the California Theatre of Performing Arts located at 1398 North "E" Street. The California Theatre plays host to a number of cultural events such as the Inland Empire Symphony Orchestra, the Inland Dance Theatre as well as the Civic Light Opera sponsored productions of hit musicals. The Theatre was built in 1927-28, serves as a local historic landmark, and through its varied programming draws an estimated 50,000 people annually to the Downtown Area. On August 20, 1984, the Community Development Commission approved a Disposition and Joint Development Agreement (DDA) authorizing sale of the California Theatre to the Civic Light Opera for $150,000. The DDA specified conveyance of this property conditioned upon the Theatre being dedicated for the purpose of preserving and encouraging arts for the cultural community. At this point in time, the Civic Light Opera is experiencing severe financial problems and is in need of operational funds for the upcoming theatre season. LOAN REQUEST The Civic Light Opera has requested a short term loan in the amount of $200,000 based upon the following terms: 1. Interest rate: 7% 2. Term: 90 days 3. Security: CLO will provide a first deed of trust for the theatre as well as a promissory note for the full amount of the loan. 4. The current DDA will be amended to resolve the previous conflicts over the scheduling and rental rates to other fine arts organizations. The Civic Light Opera Association anticipates it will be able to repay its debt from ticket sales for its scheduled performances. If the Civic Light Opera Association is not successful in obtaining financial assistance, the Association has advised staff it will be forced to close its doors this season. It is clear that the closure of the California Theatre will negatively impact both the cultural and artistic fiber of the community as well as the City's efforts towards rebuilding and creating a vibrant downtown. --------------------------------------------------- ------------------ KJH:EMW:1ag:clo.cdc COMMISSION MEETING AGENDA MEETING DATE: 09/07/1993 Agenda Item Number: _ DEVELOPMENT DEPARTMENT STAFF REPORT San Bernardino Civic Light Op August 30, 1993 Page Number -2- --------------------------------------------------------------- RECOMMENDATION Staff recommends adoption of the form motion. U I KENN H J. H NDERSON, Executive Director Development De artment f --_------------------------------------------------------------------------------------------ KJH:EMW:1ag:c1o.cdc COMMISSION MEETING AGENDA MEETING DATE: 09/07/1993 Agenda Item Number: 9 pLIG 30 '93 010 01 PM 0 MRAFT RECORDING REQUESTED HYS REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND WHEN RECORDED RETURN TOs SABO i GREEN, a Professional Corporation Suite 400 6320 Canoga Avenue Woodland Bills, California 91367 (Space Above for Recorder's. Use) RFD.,..,,�...,.....N ar_ANCY OF TEM CITY AF BAN BERNARDINO ..� rLC�+Y i_�,u�a� 'LOAN AGREMa= ltty At►rENDED DISPOSITION ANA JOINT DEV P=T1 AGREEMENT (SAX BF'R�,"`Rn�DTNO MV C Wra OPERA ASSOrTATTAN) By and Between REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO and THE SAN BERNARDINO CIVIC LIGHT OPERA ASSOCIATION a non-profit, charitable and educational corporation of the State of California NONE- q.IG 30 193 M:e1PM P.3 DRAFT - �Sa00001-38/DOC/706/dg -- 8/30/93 1100 AGENCY OF THE CITY OF BAN BERNARDINO LOAN AC3R m= 11T�•[� AMMMED DISPOSITION AND a01NT pm=m=MB T Aagmn ENT (SM SMAUINQ Civic LIGHT OPERA ASSOCIATION) This Loan Agreement and Amended Disposition and Joint Development Agreement (the "Agreement") is entered into this day of September, 1993s by and between the REDEVELOPMENT AGENCY OF THE CITY OF SAN B RNARDINO# a public body, corporate and politic duly organized and existing under the laws of the State of California (hereinafter referred to as the "Agency") , and the SAN BERNARDINO CIVIC LIGHT OPERA ASSOCIATION, a non-profit, charitable and educational corporation of the State of California (hereinafter referred to as the 'Association") . RECITALS WHERRAS, the Agency in authorized and empowered by the Community Redevelopment Law, Chapter 1 of Division 14 of the California Health and Safety Code, as amended (the "Law") , to permit owner participation in the redevelopment of real property; to enter into agreements for the acquisition, disposition and development of property or to otherwise assist in the redevelopment of real property within a redevelopment project area conforming with a redevelopment plan adopted for such area: to acquire real and personal property in redevelopment project areas; to receive consideration for the provision of redevelopment assistance; to make and execute contracts and other instruments necessary or convenient to the exercise of its 1 ALIG 30 '93 01:02PM P.4 powers; and to incur indebtedness to finance or refinance redevelopment projects; and WHEREAS, the Agency and the Association have previously entered into a certain Disposition and Joint Development .Agreement (the "DQJDA") dated as of October 151 1984, pertaining to the acquisition and use by the Association of certain property known as the California Theater and as more particularly described in the D&JDA (the "Theater") ; and WHEREAS, the Theater is located within the Central City Korth Redevelopment Project Area of the Agency; and WHEREAS, the D&JDA provided for the use of the Theater by various fine arts organizations and performing arts groups and established certain guidelines and restrictions with respect to such use; and WHEREAS, the D&JDA also provided for the rental of certain portions of the promises comprising the Theater by certain small businesses and the parties deem it desirable that such rental arrangements remain in tact= and WHEMMS, because of certain economic conditions, the Association has requested the assistance of the Agency in order to ensure the continued use of the Theater by fine arts organizations for the benefit and enjoyment of the residents of the Central City 2 WOC= C q.� 3s 'A 01�02PM P.5 0 North Rodeveloj=ant Project Area and the residents of the City of San Bernardino (the "city") generally; and WHEREAS, in order to assist the Association in causing the continued use and operation of the Theater, the Agency_ deems it desirable to loan to the Association an amount not to exceed Two Hundred Thousand Dollars ($200,000) (the "Agency Loan") to be used by the Association in such a manner as is doomed appropriate to ensure future use and performances at the Theater; and WHEREAS, in order to ensure the future viability of the Theater, the Parties also deem it necessary to make certain amendments to the DGJDA with respect to the scheduling, use and operation of the Theater which amendments shall be more fully hereinafter described; and WHEREAS, in consideration for the provision of the Agency Loan, the Association shall execute a Promissory Note secured by a Deed of Trust pertaining to the Theater. NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS: 98ction z. neflned Terms. All terms not otherwise defined herein shall have the same meaning as set forth in the D&JDA, or if not used therain, shall have the same meaning as used in the community Redevelopment Law, Health and Safety code Section 33000, g#', seq. (the "Law") . 3 - aao�mamx+�w C RUG 30 '93 01:02PM P.6 INction 2. Except as otherwise amended hereby or provided herein the terms and conditions of the D&JDA shall remain in full force and effect. Any lease arrangements as referenced in Sections 1 and Z of the D&JDA shall, to the extent feasible, remain in tact in accordance with the provisions of the D&JDA. tion 3. &c_sney Loan'. The Agency hereby agrees to provide to the Association the Agency Loan in an aggregate principal amount of Two Hundred Thousand Dollars ($200,000) as evidenced by a Promissory Note, attached hereto as Exhibit "A" and incorporated herein by this reference and secured by a Deed of Trusts attached hereto as Exhibit "8" and incorporated herein by this reference. section A. Terms. The Agency Loan shall be fully due and payable with all accrued interest on December 6, 1993. The interest rate on the Agency Loan shall be seven percent (7t) and accrued interest in an amount equal to Three Thousand rive Hundred Dollars ($30500) shall be due and payable in full on December 6, 1993 provided, however, that if the Agency Loan is not repaid in full plus accrued interest, upon expiration of the tern of the Agency Lean, then the Association will be in default and the Agency shall have the right to immediately foreclose on the Theater pursuant to the terms of the Dead of Trust and the interest rate after the expiration of the term of the Agency Loan shall be ten percent (10%) per annum on any unpaid principal and interest (the "Default Rate") . 4 ' �fo�10oChOs Ally 30 '93 01:03PM P.7 The Deed of Trust shall provide that, notwithstanding any of the provisions of Section 2.6 of the D&JDA to the contrary, the Agency shall have the right to immediately foreclose on the Theater in the event the Promissory Note plus all accrued interest is not repaid in full upon expiration of the term. The Deed of Trust shall further encumber all fixtures and/or equipment including, but not limited to, lighting fixtures, sound equipment, electronic equipment, musical instruments and stage props which is necessary for the operation of the Theater and which is presently used by the Association. M0cti22-A- Mpdmant of Section 2(h) of the D&JD . Subparagraph (b) of Section 2 of the D&JDA shall be deleted in its entirety and shall be replaced by the followings Association shall devote the property to its own uses, and shall also make the building and its facilities available for use by all legitimate fine art organizations within the City of San Bernardino for fine arts performances With all such organizations to be guaranteed access to the facility. In the event of any dispute regarding whether an organization Qualifies for any entitlement to use the Theater because of its standing as a legitimate fine arts organization of the city of San Bernardino, the dispute shall be submitted to the Agency Administrator of the San Bernardino Eoonomic Development Agency (the "RDA") or to the person or entity designated by the Agency Administrator, whose decision shall be binding. In disputes as to scheduling priorities, the matter shall also be submitted to the Agency Administrator of the RDA, or his or her 5 - 000tioomraoc:or pJG 30 193 01:03PM P.B s designee, for resolution. The recommendations of the Agency Administrator, or his or her designee, shall be binding on the Association. section A. Amendment of Section 2(cl of _the D&JDA. Subparagraph (c) of Section 2 of the D&JDA shall be deleted in its entirety and shall be replaced by the following: The Agency Administrator of the EDA, or his or her designee, shall establish reasonable rates for use of the Theater for fine arts organizations of the City of San Bernardino. The Agency Administrator of the EDA shall have final authority as to rates and shall use best efforts to establish rates for use by tine arts organizations that are reasonable and based upon cost. faction Z. pfa lt. The following events shall constitute events of default hereunder: a. Failure by the Association to pay the principal of or interest on the Agency Loan when and as the same shall become due and payable. b. Failure by the Association to observe and perform any of the covenants, agreements or conditions on its part contained in this Agreement, for a period of thirty (30) days after written notice by the Agency specifying such failure and requesting that it be remedied. However, if in the reasonable opinion of the Association the failure stated in such notice can be corrected, but G� M G 30 '93 01:04M P.9 0 not within such thirty (30) day period, the Agency shall not unreasonably withhold its consent to an extension of such time if correct action is instituted by the Association within such thirty (30) day period and diligently pursued until such failure is corrected. section 8. Remedies. If an event of default has occurred and is continuing, the Agency may declare the principal of the Agency Loan, together with the accrued interest on all unpaid installments thereof, to be due and payable immediately, and upon such declaration the same shall become immediately due and payable, anything in this Agreement notwithstanding. Immediately upon becoming aware of the occurrence of an event of default, the Agency shall give notice of such event of default to the Association by telephone, telecopier or other telecommunication device, promptly confirmed in writing. In addition, the Agency may exercise any of its rights or remedies under the promissory Note and Deed of Trust including, but not limited to, the right to foreclose on the Theater. A waiver of any default by the Agency shall not affect any subsequent default or impair any rights or remedies of the subsequent default. No delay or omission of the Agency to exercise any right or power accruing under any default shall not impair any such right or power or shall be construed to be a waiver of any such default or an acquiescence of rights hereunder. - 7 - waaioea�noawe RUG ae P 9 01:04PM P.10 Whenever in this Agreement any amount is required to be paid on a day Which is not a business day, such payment shall be required to be made on the business day immediately following such day. Se for n 9. Notices. All written noticed to be given under this Agreement shall be given by first class mail or personal delivery 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: If to the Agency: Redevelopment Agency of the City of. 8an Bernardino 201 North "E" St. , Third Floor San Bernardino, Calif. 92401 Attn: Executive Director If to the Association: The San Bernardino Civic Light opera Association 998 North "D" strut $an Bernardino, california 9$405 Attn: section 10. $everability. If any section, paragraph, sentence, clause or phrase of this Agreement shall, for any reasonp be hold illegal, invalid or unenforceable, such holding shall not affect the validity of the remaining portions of this Agreement. sect on 11. Governing Law. This Agreement shall be construed and governed in accordance with the laws of the State of California. � 8 � p�p0o01'OOf.11ot A IG 30 193 01s05PM P.11 section 12. indemniLtsatIon. it is understood and agreed that no official, employee or agent of the Agency shall be personally liable to the Association or to anyone also as to any obligation or obligations under the terms of this Agreement. The Association shall save the Agency, and all parties in privity to it, harmless from all claims, demands, causes of action, expenses, and liability of whatsoever kind or nature which may arise out of, because of, concerning, or incident to the performance of the Association under this Agreement, including all court actions, costs and expenses and attorney's fees relative to the Agency being a party to this Agreement as nay be initiated by the Association or any third party for any reason whatsoever, including any claims for damages or with respect to personal injuries on the Property. section 13, Effective Date of This Agreement Pcutionj i erm of Agreement. This Agreement shall not be effective for any purpose whatsoever or binding and enforceable upon the Agency until such time as this Agreement has been approved pursuant to official action of the Agency in accordance with a duly adopted and approved Agency resolution authorizing the Chairman and secretary of the Agency to execute this Agreement on behalf of the Agency. This Agreement may be executed in original counterparts, each of which shall be deemed to be an original for all purposes, and such counterparts shall constitute one and the same instrument. This Agreement shall remain in full force and effect until all of the obligations hereunder have been satisfied in full. 9 - ow�000nooea�or p.IG 30 '93 01:05PM ® P.12 Section i4. Counter»atrts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original. 10 - weouo+ucoc��a AI IG 30 193 01:05PM P.13 IN WITNESS WHEREOF, the Redevelopment Agency of the City of San Bernardino and the San Bernardino Civic Light opera Association have caused this Loan Agreement to be signed by their respective officers, all as of the day and year first written above. REDEVELOP 0 MF THE CITY of S By: Executive Director ATTEST: By:_ Secretary APPROVED ORM: SABO & G , a Profess nal Corporation Counsel for Agency SAN BERNARDINO CZVIC LIGHT OPERA ASSOCIATION, a non-profit, charitable and educational corporation of the State of caiifornia DRAFT By:' Its: President 11 — �omu�ooa�a AUG 30 '93 01:06PM P.14 STATE OF CAILIIr'ORNIA ) COUNTY of on before me, (here insert name and title of the officer) , personally appeared personally known to Me (or proved to me on the bas s of satisfactory evidence) to be the person(@) whose names) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the game in his/her/their authorized capacity(ies) , and that othe his/her/their signature(s) on the instrument the person(s) , r entity upon behalf of which the person(s) acted, executed the instrument. WITNESS Katy hand and official seal. iignatura (Seal) 12 asaaoava��a AUG 30 193 01:06PM P.is STATE OF CALIFORNIA ) coUNTY OF On before me, (here insert name and title of the officer) , personally appeared e personally known to me (or proved to me on the basis of sat sfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(iss) , and that by the his/her/their onbehalf of( which ttheei person(s)e acted, executed the entity up instrument. WITNESS my hand and official seal. Signature (Bead) fl, 13 W0C= p.JG 90 193 M:s 0GPM P.16 EXHIBIT "A" promissory Note 1993 $200,000 For value received, the undersigned, ► a , hereby unconditicna lly promises to pay o the Redevelopment gency of the city of San Bernardino (the 'Agency") at 201 North E Street, Third Floor, San Bernardino, California 92401-1507 the principal sums of not to exceed TWO HUNDRED 'THOUSAND DOLLARS ($200,000) (the "Agency Loan„) with interest thereon. This Note has been issued, executed and delivered in connection with the execution of that certain Loan Agreement and Disposition and Joint Development Agreement (the *Agreement") dated as of September _, 1993. Pursuant to the Agreement, the Agency has agreed to make the Agency Loan in the principal amount of not to exceed Two Hundred Thousand Dollars ($200,000) subject to the conditions precedent set forth in the Agreement, and the undersigned has agreed to repay the Agency Loan as evidenced by this Note in accordance with and under the terms provided in the Agreement and as hereinafter set forth. The interest rate on the Agency Loan shall be seven percent (7%) per month (the "Interest Rate") , fixed for the term of the Agency Loan. Upon the expiration of the term of the Agency Loan in which case interest shall accrue at the rate of ten percent (10%) per annum on the entire principal and interest amount of the Agency Loan until the outstanding principal balance, plus all accrued and unpaid interest are paid in full. This Note shall be repaid to the Agency in full with accrued interest on or prior to December 6, 1993. This Note may be paid in whole or in part at any time prior to the maturity date hereof at the option of the undersigned and without any penalty or premium whatsoever due as a result thereof; provided, however, that any such payment or payments in part shall not postpone or delay the remaining principal payments due and payable hereunder. Any such partial prepayments shall be credited and applied towards the unpaid principal balance. All payments of principal and interest on this Note shall be made in lawful money of the United States of America payable to the Agency at the San Bernardino Redevelopment Agency, 201 North "E" Street, Third Floor, San Bernardino, California 92401-1507. Exhibit A - 1 AUG 30 '93 01:07PM P.17 If a default in connection with the payment of the principal of this Note shall have occurred and this Note shall have been presented to an attorney for collection, or if suit is filed hereon, or proceedings are had in bankruptcy, probate, receivership, reorganization, arrangement or other judicial proceedings for the establishment or collection of any amount required hereunder, or any amount payable or to be payable hereunder is collected through any such proceedings, the undersigned agrees to pay to the holder hereof all reasonable costs of collection including, but not limited to, attorney's fees and expenses and all costs of any legal proceedings. if an event of default shall have occurred hereunder or under the Agreement or the principal and accrued interest is not timely repaid to the holder hereof, the principal and accrued interest then duo and payable but which is delinquent and has not so been paid by the undersigned shall bear interest from the date such payment was due on the total payment amount then due and owing until paid at a rate of ten percent (lo%) per annum. This Note is secured by a Deed of Trust executed contemporaneously herewith and the Agency is entitled to the benef it and security of the Deed of Trust. The obligation of the undersigned to make or provide for the payment required hereunder shall be absolute and unconditional, and the undersigned shall make or provide for such payment without abatement, diminution or deduction regardless of any cause or circumstances whatsoever including, without limitation, any defense, set-off, recoupment or counterclaim which the undersigned may have or assert against the Agency or any other person. The undersigned and all endorsers or guarantors hereof expressly waive demand and presentment for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, bringing of suit, and diligence in taking any action to collect any amounts called for hereunder and in the handling of properties, rights or collateral at any time existing in connection herewith. If the prescribed date of payment hereunder is a Saturday or Sunday or legal holiday at the location of the principal office of the Agency, such payment shall be due and payable on the next succeeding business day. This Note has been issued, executed and delivered in the State of California and shall be governed by and construed in accordance with the lava of the State of California. IN WITNESS WHEREOF, the undersigned have caused this Note to be executed as of this day of , 1993. BY - Its Exhibit A - 2 AL16 30 '93 01:07PM P.18 EXHIBIT "E" Deed Of Trust and Assignment of Rents RgCORDING REQUESTED BY: Redevolopnent Agency of the City of San Bernardino WHEN RECORDED MAIL TO: SABO a GREEN, A Professional corporation 6320 Canoga Avenue, Suits 400 Woodland Hills, California 91367 (space above for Recorder's Use) This DEED OF TRUST AND ASSIGNMENT OF RENTS (hereinafter referred to as such or as the "Mortgage") , entered into on 1993, by and among (hereinafter referred to as the True or , w oto address is , San Bernardino, California _____, (hors natter referred to as the "Tru®tee") , whose address c San Bernardino, California and the � pub body, REDEVE pMENT AGENCY OF THE CITY OF SAN BERNARDINO, a p corporate and politic (hereinafter referred to as the "Beneficiary p Y T N T 8 B E T H GRANTING CLAUSE To secure the full and timely payment of the indebtedness and the full and timely performance and discharge of the obligations, the Trustor has CONVEYED AND WARRANTED, and by these presents does CONVEY AND VARRANT, unto the Trustee the Mortgaged Property, as defined herein, subject, however, to the permitted Encumbrances, as defined herein, TO HAVE AND TO HOLD the Mortgaged Property unto the Trustee, forever, and the Trustor does hereby bind itself, its successors and assigns to warrant and forever defend the title to the Mortgaged Property unto the Trustee against every person whomsoever lawfully claiming or to claim the same or any part thereof; provided, however, that if the Trustor shall pay (or cause to be paid) the Indebtedness as and when the same shall beoome due and payable and shall perform and discharge (or cause to be performed and discharged) the Obligations on or before the date same are to be performed and discharged, then the liens, security interest, estates shallrights erminate granted by rwis, same defined aremain in and fulli force Mortgage d effect. Exhibit B - 1 AM 30 '93 01�08PM P.19 ARTICLE II nA�TUTTTONB 2.1 Definition®. As used herein, the following terns shall have the following meanings: "Agreement" shall mean that certain Loan Agreement and Amended Disposition and Joint Development Agreement dated as of September _, 1993 by and betveen the Redevelopment Agency of the City of San Bernardino and San Bernardino Civic Light Opera Association. "Beneficiary" shall mean the Redevelopment Agency of the City of San Bernardino, a public body corporate and politic, or any successor or assign. "Buildings" shall mean any and all buildings, open parking areas and other improvements, and any and all additions, alterations, or appurtenances thereto, which may be situated upon the Land, as defined herein. "City• shall mean the City of San Bernardino, California, or any successor. "Event of Default" shall mean any happening or occurrence described in Article VI hereinbelow. "Fixtures" shall mean all materials, supplies, equipment, apparatus and other items which shall be attached to, installed in or used in connection with (temporarily or permanently) the Land or any Buildings which may be erected in accordance with the provisions of the Agreement including, but not limited to lighting equipment, sound equipmant, -musical instruments and stage props. "Governmental Authority" shall mean any and all courts, boards, agencies, commissions, offices or authorities of any nature whatsoever for any governmental unit (federal, state, county, district, municipal, city or otherwise) whether now or hereafter in existence. "Impositions' shall mean all real estate and personal property taxes, water, gas, serer, electricity and other utility rates and charges, Charges for any easement, license or agreement maintained for the benefit of the Mortgaged property, and all other taxes, charges and assessments and any interest, costs or penalties with respect thereto, of any kind and nature whatsoever which at any time prior to or after the execution hereof may be assessed, levied or imposed upon the Mortgaged property or the Rents, as defined herein, or the ownership, use, occupancy or enjoyment thereof. "Indebtedness" shall mean the principal and all other amounts, payments and premiums due under and secured by the Note and this Mortgage. Exhibit B - 2 AM 30 193 01s09PM P.20 "Land" shall mean the real estate or interest therein described in Exhibit •A" attached hereto, and all rights, titles and interest appurtenant thereto. "Leases" shall mean any, and all leases, subleases, licenses, concessions or other agreemnts (written or verbal) , now or hereinafter in effect which grant a possessory interest in and to, or the right to use, the Mortgaged Property, save and except any and all leases, subleases or other agreements pursuant to which the Trustor is granted a possessory interest in the Land. "Legal Requirements" shall mean (i) any and all present and future judicial decisions, statutes, rulings, rules, regulations, permits, certificates or ordinances of any Governmental Authority in any way applicable to the Trustor or the xortgaged Property, including the ownership, use, occupancy, operation, maintenance, repair or reconstruction thereof, (ii) the Trustor's presently or subsequently affective bylaws and articles of incorporation, partnership, limited partnership, joint venture, trust or other form of business association (if either, both or all be any of same) , (iii) any and all Leases and (iv) any and all Leases and other contracts (written or oral) of any nature by which the Trustor or any guarantor thereof may be bound. "Mortgaged Property" shall mean the Land, Buildings, Fixtures as defined herein, and Rents together with (i) all rights, privileges, tenements, hereditaments, rights-of-bray, easements, appendages and appurtenances in anyway appertaining thereto, and all right, title and interest of the Trustor in and to any streets, ways, alleys, strips or gores of land adjoining the Land or any part thereof= (ii) all additions, appurtenances, substitutions, replacements and reversions thereof and thereto and all reversions and rimainders therein; (iii) all of the Trustor's right, title and interest in and to any award, awards, remuneration, settlements or compensation heretofore made or hereafter to be made by any Governmental Authority to the present or any subsequent owner of the Land, Buildingsi, Fixtures or Personalty, including those for any vacation of, or change of grade in, any streets affecting the Land; and (iv) any and all other security and collateral of any nature whatsoever, now or hereafter given for the repayment of the Indebtedness or the performance and discharge of the obligations. As used herein, the term "Mortgaged Property" shall be expressly defined as meaning all, or where the context permits or requires, any portion of the above and all or, where the context permits or requires, any interest therein. •Note„ shall mean the Promissory Note, dated as of the date hereof, executed by the Trustor and payable to the order of the Beneficiary in the principal amount of not proi exceed, wonHundred Thousand Dollars ($200,000) , and pay able "obligations" shall mean any and all of the covenants, warranties, representations and other obligations (other than to repay the Indebtedness) made or undertaken by the Trustor or others Exhibit B - 3 AUG 30 '93 01'09F P.21 to the Beneficiary, the Trustee or others as set forth in the Agreement, the Note and this Mortgage. "permitted Encumbrances" shall mean the outstanding lions, easements, restrictions, security interests and other matters (if any) as permitted by the Agreement and the lien and security interests created by the Note and this Mortgage. "Rents* shall mean all of the rents, revenues, income proceeds, profits and other benefits paid or payable by parties to the Leases other than the Trustor or using, leasing, licensing, possessing, operating from, residing in, selling or otherwise enjoying the Mortgaged property. "State" shall mean the State of California. "Trustee" shall mean or its successors. "Trustor" shall mean a California limited partnership or its- successor. 2.2 in -ernretation. Where the context so requires the use of the masculine gander shall include the feminine and neuter genders, and the singular number shall include the plural and vice versa. 2.3 Title R @adincs. The titles and headings of the Articles and Sections of this Mortgage have been inserted for convenience of reference only and are not to be considered a part hereof and shall not in any way modify or restrict any of the terms or provisions hereof and shall never be considered or given any off act in construing this Mortgage or any provision hereof or in ascartaining intent, it any question of intent should arise. ARTICLE III R� RS$trrATION5 LU wARRnNTr, The Trustor hereby unconditionally warrants and represents to the Beneficiary as follows: 3.1 hay{dity of Loan Instruments. The Note and this Mortgage constitute the legal, valid and binding obligations of the Trustor and others obligated under the tarns of the Note and this Mortgage, in accordance with their respective terms. 3.2 Title Hortgagod Prove rt Lien of this instrument. The Trustor has good and marketable title to the Lana (in fee simple) , free and clear of any lions, charges, encumbrances, security interests and adverse claims whatsoever except the permitted Encumbrances. This Mortgage constitutes a valid, Subsisting deed of trust on the Land in accordance with the terms hereof. Exhibit B - 4 RA 38 193 01:10PM P.22 ARTICLE IV AFEJE ATTVE C,9yM=9 The Trustor hereby unconditionally covenants and agrees with the Beneficiary as follows: 4.1 PAYMOnt And f ein. The Truator will pay tha Indebtedness, as and when called for in the Note and this Mortgage all of the and on io before full and on sorb bef ore and thew dates same are to be Obligation performed. 4.2 cnxaiance with Legal RectuirsAfl . The Trustor w will promptly and faithfully comply with, conform to and. obey all present and future Legal Requirements. 4.3 pAyment of 1M22Niti0n5. The Trustor will duly pay and discharge, or cause to be paid and discharged, the Impositions not later than the due date thereof, or the day any fine, penalty, interest or cost may be added thereto or imposed, or the day any lien may be filed, for the nonpayment thereof (it such day is used to determine the due date of the respective item) = provided, however, that the Trustor may, if permitted by law and if such installment payment would not create or permit the filing of a lien against the Mortgaged Property, pay the Impositions in installments whether or not ,interest shall accrue on the unpaid balance of such Impositions. 4.4 Repai The Trustor will keep the Mortgaged Property RL in good condition and repair. 4.5 IAKADGA. To the extent not in conflict with the insurance requirements of any lender providing any form of construction or permanent financing with respect to the Mortgaged Property, the Trustor will obtain and maintain insurance upon and relating to the Mortgaged property insuring against personal injury and death, lose by fire and such other hazards, casualties and contingencies as are normally and usually covered by extended may coverage policies in affect in the State an such other 1sX in an such be specified by the Beneficiary, from time to amounts and with such insurers of recognized responsibility as are acceptable to the Beneficiary. 4.6 InabQCP,ion. The Trustor will permit the Trustee and thsspecteftihe Moriga and Propearty� at all reasonable times. 4.7 to 4.7 Hold Aarmles . Upon an Event of Default hereunder or and hold Agreement,nefioiary harmless tlo the extent bas provided in f the Agreement. 4.8 gcranment. The Trustor will comply fully with and perform each and all of its covenants, obligations and agree-ants set forth in the Agraemont- Bxhibit B - 5 PUG 30 193 01:1 1PM P'23 ARTICLE V NEGATIVE The Trustor hereby covenants and &green with the Beneficiary indebtedness r in full and l of the obligations shall have been fully performed and dischargeds 5.1 URA violations. The Trustor will not use, maintain, operate or occupy, or allow the use, maintenance, operation or occupancy of the mortgaged Property in any manner which (i) violates any Legal Requirement, (ii) may be dangerous unless safeguarded as required by laws, (iii) constitutes a public or private nuisance or (iv) makes void, voidable or cancelable, or increases the premiums of, any insurance then is force with respect thereto. 3.2 haste. The Trustor will not commit or permit any waste of the Mortgaged Property. 5.3 Further Kncumbrancea. The Trustor will not create, place or permit to be created or placed, or through any act or failure to act, acquiesce in the placing of, or allowed to remain, any mortgage, pledge, lien (statutory, constitutional or contractual) , security interest, encumbrance or charge, or conditional sale or other title retention agreement which may in any way compromise the rights of the Beneficiary under this Deed of Trust. 3.4 No Sales or other Transf era. EXCept as otherwise provided in the Agreement, the Trustor will not sail, transfer or otherwise dispose of the Mortgaged Property prior to the repayment of the Indebtedness. ARTICLE VI Z=A or DEFAII7�T The term "Event of Default", as used in the Note and this Mortgage, shall mean the occurrence or happening, at any time and from time to time, of any one or more of the following: 6.1 payment of Indebtedness. If the Trustor shall fail, refuse or neglect to pay, in full, the Indebtedness as and when the same shall become due and payable, whether at the due date thereof stipulated in the Aote and this Mortgage, or at a date fixed for prepayment, or by acceleration or otherwise. 6.2 29faLlt Under The Agreement. If any Event of Default shall occur, as the same is defined in the Agreement. 6.3 Forgalosure of other Liens. If the holder of any lien or security interest on the Mortgaged Property institutes Exhibit B - 6 ALG 30 '93 01:11PM P.24 AVAL c foreclosure or other proceedings for the enforcement of its remediSs thereunder. ARTICLE v=i REMEDIES s 7.1 _3€ . If an Event of Default shall occur, the Beneficiary may, at the Beneficiary's election and by or through the Trustee or otherwise exercise any or all of the following rights, remedies and recourses: (a) Ace lera t Declare the principal balance, and any Accrued but unpa d portion of the Indebtedness to be immediately due and payable, without further notice, presentment, protest, demand or action of any nature whatsoever (each of which hereby is expressly waived by the Trustor) , whereupon the same shall become immediately due and payable. (b) gntry On yorjgAod Pro-pert : Enter upon the Mortgaged Property and take exclusive possession thereof and of all books, records and accounts relating thereto. (c) CXZ i on of ortcr s Hold, lease, manage, operate or otherwise use or permit the use of the Mortgaged Property, either itself or by other persons, firms or entities, in such manner, for such time and upon such other terms as the Beneficiary may deem to be prudent and reasonable under the circumstances. Apply all Rents and other amounts collected by the Trustee in connection therewith in accordance with the provisions of Section 7.7 below. d ForeclQgure and Sale; $ell or offer for sale the Mortgaged Property in such portions, order and parcels as the Beneficiary may determine, with or without having first taken possession of same, to the highest bidder at public auction. Any such auction shall be conducted pursuant to Sections 2924a-2924c and 2924f-2924h of the California Civil code. (e) : upon, or at any time after, commencement of foreclosure of the lien and security interest provided for herein or any legal proceedings hereunder, make application to a court of competent jurisdiction as a matter of strict right and without notice to the Trustor or regard to the adequacy of the Mortgaged Property for the repayment of the Indebtedness, for appointment of a receiver of the Mortgaged Property and the Trustor does hereby irrevocably consent to such appointment. (f) Qtheac: Exercise any and all other rights, and resources sd He and this virtue mortgage or now o r ereaft r exiting in equity, at la, by f statute or otherwise. Exhibit H - 7 v� i1G 30 '93 01:12PM P.25 7.2 SCRRrate Salem. The Nortgaged Property may be sold in one or more parcels and in such manner and order as the Trustee, in its solo discretion, may elect. 7.3 Razediel Cum C an - us' .T9 Beneficiary shall have all r ghts, remedies and recourses granted in the Note and this Mortgage and available at law or equity and remedies shall be non-exclusive. 7.4 I OAM of a to collateral. The Beneficiary nay release, regardless of considerat on, any part of the Mortgaged Property without as to the remainder, in any way impairing, created in ou� ravidencedgbyrthelNote andthe thislien lKor�tgage�ity interest 7.5 sower of Redem»tio^ Notice and Marshal�n�g—Q1 . To the fullest extent permitted by law, the Trustor hereby irrevocably and unconditionally waives and releases (i) all benefits that might accrue to the Trustor by virtue of any present r future law exempting the Mortgaged Property from attachment, levy o execution or providing for any appraisement, valuation, stay of execution, exemption from civil process, redemption or extension of time for payment, (ii) all notices of any Event of Default (except as may be provided for in Section 7.1 above) or of the Trustee's election to exercise or its actual exercise of any right, remedy or right to provided marshalling under of assets or a this sale in Mortgage iverse (order of alienation. 7.6 :,�°^,.^* "�"„�P of proceedings. In case the O�V V�14W Beneficiary shall have pracseded to invoke any r ght, red y or recourse permitted under the Note and this Mortgage and shall thereafter elect to discontinue or abandon same for any reason, the Beneficiary shall have the unqualified right to do so and, in such an event, the Trustor and the Beneficiary shall be restored to their former positions with respect to the Indebtedness, the Obligations, the Note and this Mortgage, the Mortgaged Property and otherwise, and the rights, remedies, recourses and powers of the Beneficiary shall continua as if same had never been invoked. 7.7 ABp1 i c'*fon_ Of Proceeds. The proceeds of any sale of and the gents and other amounts generated by the holding, leasing, operation or other use of, the Mortgaged property shall be applied by that funds faro (or o available v therefrom in appointed)ifollowi order extent of priority: (a) first, to the payment of the costs and expenses of taking possesision of the Mortgaged Property and of holding, using, leasing, repairing, improving and selling the same, including, without limitation, (i) the trustee's and receivers' fees, (ii) court costs, (iii) attorneys' and accountants'and all ( iv) costs of advertisement, and (v) the payment Impositions, liens, security interests or other rights, titles or interests equal or superior to the lien and security interest Exhibit B - 8 AM 30 '93 M:13PM P.26 of this Mortgage (except those to which the Mortgaged Property has been sold subject to and without in any way implying the Beneficiary's prior consent to the creation theroof) ; (b) second, to the payment of all amounts, other than the principal balance of the Indebtedness, vhich may be due to the Beneficiary under the Note and this Mortgage; (c) third, to the payment of the outstanding principal balance of the Indebtedness; (d) fourth, to the extent funds are available: therefor out Of the sale proceeds or the Rents and, to the extent known by to the payment of any the Beneficiary, P Ym indebtedness or obligation secured by a subordinate deed of trust on or security interest in the Mortgaged Property; and (e) fifth, to the Trustor. 7.6 ca to e • The Beneficiary shall give pr=pthewremed taken of ursua t to Section 7 Default under sp tiole VI heroof and Y ARTICLE VIII CONDEMBTION 9.1 Genera immediately upon obtaining knowledge of the institution of any proceeding for the condemnation of the Mortgaged Property, other than a condemnation initiated by the City or the Beneficiary, the Trustor shall give written notice to the Trustee and the Beneficiary of such fact. The Trustor shall then, if requested by the Beneficiary, file or defend its claim thereunder and prosecute sane with due diligence to its final disposition and shall cause any awards or settlements to be paid over to the If theMorrttgaged disposition pursuant to the terms of this Mortgage. Property is taken or diminished in value, or if a consent the award settlement is entered, or under threat of such proceeding, settlement payable to the Trustor by virtue of its interest in the Mortgaged Property shall be, and by these presents is, assigned, transferred and set over unto the Beneficiary to be held by it, in trust subject to the lion and security interest of . this ortgage' and disbursed as the interests of the parties ARTICLE IX CONCERNING THE =USTEE 9.1 No Lia i�_lity. The Trustee shall not be liable for any error of judgment or act done by the Trustee in good faith, or be otherwise responsible or accountable under any circumstances whatsoever, except for the Trustee's negligence or bad faith. The anyone eenterling by virtue of the powers herein granted entry u ,upon Y Exhibit B - 9 qJG Be '93 01:13PM P'27 Property for debts contracted or liability or damages mortgaged eration of the Mortgaged Property. incurred in the management or op The Trustee shall have the right to rely Y an action taken instrument,t, proposed or signature authorizing or supporting cod faith to proposed to be taken by it hereunder, believed by it in q be genuine. The Trustee shall be entitled to reimbursement for expenses incurred by it in the performance of its duties hereunder and to reasonable compensation for its Services hereunder the com semi compensation rendered. The Trustor will, from time to time, pay F due to the Trustee hereunder and reimburse the Trustee for; and saws it harmless against, any and all liability and expenses which may be incurred by it in the performance of its duties. 9.2 of Monevffi. All moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they Were received, but need not be segregated in any manner from any other moneys (except to the extent required by law) , and received Trustee it hereunder no liability for interest on any money 9.3 s. The Trustee may; resign by the giving of notice of such resignation in writing to the Beneficiary. If the Trustee shall die, resign or become disqualified from acting in the execution of this trust or shall fail or refuse ro execute for any game when requested by the Beneficiary so to do, reason, the Beneficiary shall prefer to appoint a substitute trustee to act instead of the aforenamed Trustee, the Beneficiary shall have full power to appoint a substitute trustee and, if preferred, several substitute trustees in succession who shall succeed to all the estate, rights, powers and duties of the &forenamed Trustee, said substitution to be made in the manner provided by the laws of the State, as the same may be from time to time amended and supplemented. 9.4 succession instrument$. Any new Trustee appointed pursuant to any of the provisions hereof shall, without any further act, deed or conveyance, become vested with all the estates, propertiss, rights, powers and trusts of its predecessor in the iginally named as Trustee rights hereunder with like effect if or herein but nevertheless, upon the written request of the Beneficiary or of the successor Trustee the Trustee ceasing to act shall execute , and deliver and instrument transferring to such successor Trustee, upon the trusts herein expressed, all the estates, pop rights, powers and trusts of the Trustee so ceasing to act, and shall dully assign, transfer and deliver any of the prop�rt and moneys held by such Trustee to the successor Trustee so appointed in its place. ARTICLE X MISCK�LMEOUB 10.1 99=iyal li s. Each and all of the obligations shall survive the execution and delivery of the Note and this Mortgage, and the eonaummation of the Loan called for therein, Exhibit B - 10 ALG 30 '93 01:14PM P.28 and shall continue in full force and affect until the Indebtedness E shall have been paid in full. 10.2 Further Aseurancj". The Trustor, upon the request of the Trustee or the Beneficiary, Vill execute, acknowledge, deliver and record and/or file such further instruments and do such further acts as may be necessary, desirable or proper to carry out more effectively the purposes of the Note and this Mortgage and to subject to the liens and security interests thereof any property intended by the terms thereof to be covered thereby, including but not liuitod to any renewals, additions, substitutions, replacements or appurtenances to the then Mortgaged Property, 10.3 Recording and Filing. Upon the occurrence of an Event of Default as specified in the Agreement, the Trustor shall cause the Note and this Mortgage and all amendments and supplements thereto and substitutions therefor to be recorded, filed, rerecorded and refiled in such manner and in such places as the Trustee or the Beneficiary shall reasonably request pursuant to the Agreement, and will pay all such recording, filing, rerecording and refiling taxes, fees and other charges. 20.4 Notices. All notices or other communications to be given or made hereunder shall be in writing and shall be doomed to be properly given or made if sent registered mail, return receipt requested, postage prepaid, addressed as follows: Beneficiary: Executive Director Redevelopment Agency of the 201tN s Bernardino North "Ell Street, Third Floor San Bernardino, California 92401-1507 Trustor: Trustees Any such addresses may be changed at any time upon written notice of such change sent, as provided above in this section, to the other parties. 10.5 so Waiver. Any failure by the Trustee or the Beneficiary to insist, or any election by the Trustee or the Beneficiary not to insist, upon strict performance by the Trustor of any of the terms, provisions or conditions of the Note and this Mortgage shall not be deemed to be a waiver of same or of any other term, provision or condition thereof, and the Trustee or the Beneficiary shall have the right at any time or times thereafter to Exhibit B - 11 EL AIJG 30 193 01:15PM P.29 insist up on strict performance by the Trustor of any and all of such terms, provisions and conditions. 10.6 me oficiarv'a Right to Per ors the QbligatioM• If the Trustor shall fail, refuse or neglect to make any payment or perform any act required by the Note and this mortgage, then at any time thereafter and without notice to or demand upon the Trustor and without waiving or releasing any other right, remedy or recourse the Beneficiary may have because of same, the Beneficiary may (but shall not be obligated to) make such payment or perform such act for the account of and at the expense of the Trustor, and shall have the right to enter the Land for such purpose and to take all such action thereon and with respect to the mortgaged Property ac it may deem necessary or appropriate. The Trustor shall indemnify the Beneficiary for all losses, expenses, damage, claims and causes of action, including reasonable attorneys' fees, incurred or accruing by reason of any acts performed by the Beneficiary pursuant to the provisions of this Section 10.6 or by reason of any other provision in the Note and this Mortgage. All sums paid by the Beneficiary pursuant to this Section 10.6, and all other sums expended by the Benoficiary to which it shall be entitled to be indemnified, together with interest thereon at the rate specified in the Note from the date of such payment or expenditure, shall constitute additions to the Indebtedness, shall be secured by the Note and this Document and shall be paid by the Trustor to the Beneficiary upon demand. 10.7 Covenanta Running Vith thia Land. All obligations contained in the Note and this Mortgage and all covenants, obligations and agreements set forth in the Agreement are intended by the parties to be, and shall be construed as, covenants running with the Mortgaged Property. lo.8 c si All of the terms of the Note and this Mortgage shall apply to, be binding upon and inure to the benefit of the parties thereto, their respective successors, assigns, heirs and legal representatives, and all other persons claiming by, through or under them. 10.9 6 verabili_tY. If any Article or section of this Mortgaga shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining Articles and Sections shall not in any way be affected or impaired. 10.10 Entire x=cement and Amendments. The Note and this Mortgage contain the entire agreements between the parties relating to the eub�ect matter hereof and thereof and all prior agreements relative thereto which are not contained herein or therein are terminated. The Note and this Mortgage may be amended, revised, waived, discharged, released or terminated only by a written instrument or instruments executed by the party against which enforcement of the amendment, revision, waiver, discharge, release or termination is asserted. Any alleged amendment, revision, waiver, discharge, release or termination which is not so documented shall not be effective as to any party. exhibit B - 12 C AM 30 193 01:15PM P.30 0.11 ems• This Mortgage may be simultaneously 1 o nt r arts all of Which shall constitute executed in multiple counts p , and the same instrument and each of which shall but and shall be deemed to be, an original. 10.12 cev r ng Lai. This Mortgage shall be governed by and construed in accordance with the laws of the State of California. 10.13 &lid =- If any or all of the proceeds of the Note have been used to extinguish, extend or renew any then,indebtedness heretofore existing against the Mortgaged Property, extent of such funds so used, the Indebtedness and this Mortgage shall be $abrogated to all of the rights, claims, liens, titles and interest heretofore existing against the Mortgaged Property to secure the indebtedness so extinguished, extended or renewed and the former rights, claims, liens, titles and interest, if any are not waived but e continued in full rather ar force and effect in favor of the Beneficiary and are merged vith the lien and security interest created heroin dathe satisfaction of the obligations 10. of the indebtedness 10.14 Third P arty Benef icl=- Notwithstanding anything the contrary hereunder, the Redevelopment agency of the City of San Bernardino shall be deemed a third party beneficiary of this Mortgage for the purpose Of enforcing its remedies under the Agreement. IN WITNEss WKEREor, the Trustor d o has executed ecuted this Dead of Trust and Assignment of Rents this 1993. TROSTOR a By Its Exhibit B - 13 RUG 30 193 01.16PM P.31 STATE OF CALIFORNIA COUNTY OF On before me, (here insert name and title of the officer) , persona ly Appeared personally known to me (or proved to no on the bass of sat sfactory evidence) to be the parson(s) whose name(s) islare subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) , and that by his/her/their signature(s) on the instrument the person(s) , or the entity upon behalf of which the parson(s) acted, executed the instrument. WITNESS my hand and official seal. signature (seal) Exhibit 8 • 14 PAJG 30 '93 01:16PM P.32 • 0 0 MMIDIT "A" to Dead of Trust (Legal Descrip tion of Lard) I Exhibit 3 - 15