HomeMy WebLinkAbout09- Development Department D E V E L O P MEN T D E P A R T MEN T
OF THE CITY OF SAN BERNARDINO
REQUEST FOR COMMISSION/COUNCIL ACTION
From: KENNETH J. HENDERSON Subject: JERSEY SPORTS BAR
Executive Director
Date: March 17, 1993
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Synopsis of Previous Commission/Council/Committee Action(s):
On March 8, 1993, the Community Development Commission granted
conceptual approval of a $1,188,300 loan guarantee and a ten (10) year
extension of a $923,000 tax-exempt Industrial Development Bond.
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Recommended Motion(s):
(Mayor and Common Council)
MOTION A: RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO RATIFYING AND APPROVING AN AMENDED COMPANY NOTE, A
CERTAIN PURCHASE AGREEMENT AND CERTAIN RELATED LOAN EXTENSION
AND MODIFICATION AGREEMENTS OF HERITAGE OFFICE BUILDING,
LTD. , A CALIFORNIA LIMITED PARTNERSHIP, THE CITY AND IMPERIAL
BANK RELATING TO A CERTAIN INDUSTRIAL DEVELOPMENT REVENUE
NOTE (HERITAGE INVESTORS) (SMALL ISSUE EXEMPTION -
$10,000,000 MAXIMUM) DATED DECEMBER 15, 1981, AND AUTHORIZING
CERTAIN ACTIONS RELATED THERETO.
- AND -
(Motions continued on next page. . .)
Adffinistrator KENNETit J. HE ERSON
Executive Director
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Contact Person(s) : Kenneth Henderson/John Wood Phone: 5081
Project Area(s) : Central City North (CCN) Ward(s) : One (1)
Supporting Data Attached: Staff Report, Developer Fact Sheet
FUNDING REQUIREMENTS: Amount: $1,125,000 (Cont. Liab.); Source: Grntee; Tax
$25,000 Increment
Budget Authority: Requested
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Commission/Council Notes:
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KJH:JMW:O12lg COMMISSION MEETING AGENDA
Meeting Date: 03/22/199Q3
Agenda Item Number: l
REQUEST FOR COMMISSION/COUNCIL ACTION
Jersey Sports Bar
March 17, 1993
Page Number -2-
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Recommended Motion(s) Continued:
(Community Development Commission)
MOTION B: RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE
CITY OF SAN BERNARDINO, CALIFORNIA, APPROVING A LOAN
GUARANTEE TO HERITAGE OFFICE BUILDING, LTD. AND A CERTAIN
OWNER PARTICIPATION AGREEMENT BY AND BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND
HERITAGE OFFICE BUILDING, LTD.
- AND -
MOTION C: That the Community Development Commission appropriate
$25,000 to be utilized to finance in part the sum of
$50,000 required by Imperial Bank by March 31, 1993, to
extend the payoff deadline of existing Industrial
Development Bond of financing on the Heritage Building.
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KJH:JMW:012lg COMMISSION MEETING AGENDA
Meeting Date: 03/22/1993
Agenda Item Number: 9
D E V E L O P M E N T D E P A R T M E N T
OF THE CITY OF SAN BERNARDINO
STAFF REPORT
JERSEY SPORTS BAR
On March 8, 1993, the Community Development Commission granted conceptual
approval of a $1,125,000 loan guarantee for Heritage Investors
("Heritage"), in connection with the Jersey Sports Bar ("Jersey") pursuant
to business attraction efforts and securing a quality anchor tenant. Also
approved in concept was a ten (10) year extension of a tax-exempt
Industrial Development Bond ("IDB"), in the original amount of $923,000
(staff has since learned that the actual amount is $923,900).
By way of recapitulation, Jersey is an upscale retaurant and billiards
parlor which will provide dining and entertainment from 6:00 a.m. , until
2:00 a.m. It is precisely the type of elegant attraction that staff has
worked for years to locate in downtown San Bernardino and it will help to
fill the void caused by the closing of Court Street West. Jersey projects
gross annual sales of $5 million, a staff of eighty (80) and new property
and utility tax increment revenue. The capture of this important tenant
will also prevent another downtown office building from becoming vacant.
For the project to go forward, financing in the amount of $1,125,000 is
required. E.H. Wood & Associates is confident that a loan in this amount
can be obtained, subject to an Agency guarantee. Also critical to the
project economics is a ten (10) year extension of an existing tax-exempt
IDB in the amount of $923,900, together with the right to transfer
ownership of the bond. Special Counsel, Sabo & Green, has advised staff
that there is no legal impediment to the extension and right of
transferability, nor would there be any potentially negative financial
impacts from such an action.
In terms of project timeframes, Jersey wants to begin construction of
tenant improvements by April 1, 1993, with a projected completion date of
August 1, 1993. To meet these deadlines, staff is requesting that the
Executive Director be granted the authority to execute all implementing
documentation. The documentation is currently being drafted by Sabo &
Green and will, if completed in time, be presented as attachments to this
staff report.
Staff does recognize the possibility that the project commencement date
may have to be delayed. This could result from any one or more of the
following reasons: inability of E.H. Wood & Associates to obtain a binding
loan commitment by March 31, 1993, inability of Sabo & Green to complete
all necessary documentation to the satisfaction of all signatories by
March 31, 1993 or inability of the developer to complete the City plan
checking process by March 31, 1993.
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KJH:JMW:012lg COMMISSION MEETING AGENDA
Meeting Date: 03/22/1993
Agenda Item Number: 1_
DEVELOPMENT DEPARTMENT STAFF REPORT
JERSEY SPORTS BAR
March 22, 1993
Page Number -2-
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A final project obstacle is that Imperial Bank, the current holder of the IDB,
is requiring the payoff of said IDB by March 31, 1993, unless it receives a
cash payment of $50,000 to extend the payoff deadline to April 30, 1993. The
bank has the legal and discretionary authority to extend the loan and has done
so on two prior occasions with two six month extensions. However, due to its
desire to be paid off, the bank is reluctant to give further extensions. Due
to recession-induced cash flow difficulties, Heritage has requested that the
Agency advance the amount of $25,000 to Imperial Bank. Heritage has already
remitted $25,000 of its own funds. This is an important component of the
proposed assistance package, as potential legal action by Imperial Bank to
force IDB payoff by March 31, 1993 would seriously jeopardize Jersey's
occupancy plans. To secure the advance, Heritage will execute a demand note
for $25,000 in the Agency's favor.
In conclusion, staff feels that Jersey would make an excellent addition to the
existing downtown business mix. As an upscale restaurant, it helps to satisfy
the continuing need for additional eating establishments in the City's core,
while adding significantly to the City's sales tax revenues and employment
base. Moreover, the proposed assistance will prevent yet another downtown
office building from becoming vacant and unused.
Attached for your reference is a fact sheet on the subject project which was
prepared by Heritage.
Staff recommends adoption of the attached resolutions. Adoption of said
resolutions will authorize:
(i) the initial extensions of the original company note, as
required by the note documents;
(ii) the additional nine year extension of the Amended Company
Note;
(iii) the sale of the Amended Company Note;
(iv) the execution of the Owner Participation Agreement and
Guarantee in the amount of not to exceed $1,125,000; and
(v) loan of $25,000 which shall be secured by a note and personal
guarantee of the general partners of Heritage, Mr. Russell
Hatle and Mr. Raymond Fox.
KENNETH J. HEND RSON, Executive Director
Development Dep rtment
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KJH:JMW:012lg COMMISSION MEETING AGENDA
Meeting Date: 03/22/1993
Agenda Item Number:
HERITAGE OFFICE BUILDING
ECONOMIC DEVELOPMENT AGENCY LOAN GUARANTEE
Fact Sheet
Purpose of loan guarantee - To provide funding to complete tenant improvements,
remodeling and improvement to 1993 ADA standards of the historic Heritage Office
Building Iocated at 440 West Court Street in San Bernardino.
Building Tenant-Jersey's Sports Grille, an upscale restaurant and billiards club, which will
occupy the property on a ten year lease, only if the loan guarantee is completed.
Tenant's Investment -The tenant will invest over one $1,000,000 in tenant improvements in
addition to that portion of loan proceeds which will be used to fund owner's tenant
improvements.
Use of Funds - See the attached Source & Use of Funds.
Property Value - An appraisal has not been completed appraising the value of the property
with all the tenant improvements in place and the building occupied by Jersey's Sports
Grille. An economic analysis of the project has been completed by Community National
Corporation which indicates the following value:
Economic value - $1,695,000.
Replacement cost- $2,075,000.
Loan to value - 67%
Debt coverage -Income to loan payment - 1.44 to 1.
Benefits to the City - The city will gain a long sought feature for its downtown
redevelopment area which will attract a clientele of urban professionals. Not only will the
first class food operation serve breakfast and lunch, but also the restaurant serving dinner
and upscale billiard club activities will attract activity to the downtown center after business
hours.
Additionally, the Agency will gain tax increment from the improvements to be made to the
building and the increased assessed value.
Finally the City will gain sales tax revenue from the taxable sales made on premises.
Improvements to be made to the real proper -
Install new bathrooms on all three floors to meet 1993 Federal Government
mandated ADA standards.
Make all other necessary modifications and repairs necessary to meet
federally mandated 1993 ADA standards.
Install new heating,ventilating, air conditioning system.
Install new three floor glass elevator.
Restore all marble, brass and other original elements of the building.
Maintain the original 1929 hand painted ceiling.
Install complete tenant improvements for restaurant and bar operation.
Other outstanding features - Marble floors, hand painted art deco ceiling from 1929, brass
bannisters, classic baroque architecture.
Borrower- The borrowing partnership is comprised of the locally owned and operated Fox
Bros., a partnership and a Colorado investment company which is managed by the locally
owned and operated Community National Corporation. Community National Corporation
has successfully completed more than 60 acres of land development and more than 600,000
square feet of industrial and office space within the redevelopment areas of the City of San
Bernardino. Projects completed by Community National Corporation have contributed
millions of dollars of tax increment revenue to the Agency.
Financial sunnort -The project is supported by combined net worth in excess of$3,000,000.
Financial statements have been provided to the Agency financial consultant on:
The borrowers.
The tenant.
The tenants General & Limited Partners.
noo„«n/ac/,VnO
San Bernardino/Heritage
Final Resolution
1 60289/29550-DAM354
2 MAYOR AND COMMON COUNCIL OF THE
3 CITY OF SAN BERNARDINO, CALIFORNIA
4
AGENDA
5
6 March 22, 1993
7
8 Item: RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE
9 CITY OF SAN BERNARDINO RATIFYING AND APPROVING AN
AMENDED COMPANY NOTE, A CERTAIN PURCHASE AGREEMENT
10 AND CERTAIN RELATED LOAN EXTENSION AND MODIFICATION
AGREEMENTS OF HERITAGE OFFICE BUILDING, LTD., A
11 CALIFORNIA LIMITED PARTNERSHIP, THE CITY AND IMPERIAL
BANK RELATING TO A CERTAIN INDUSTRIAL DEVELOPMENT
12 REVENUE NOTE (HERITAGE INVESTORS) (SMALL ISSUE
EXEMPTION - $10,000,000 MAXIMUM) DATED DECEMBER 15, 1981,
13 AND AUTHORIZING CERTAIN ACTIONS RELATED THERETO
14 Action to
15 be Taken: Adopt Resolution.
16 Certified copy of Resolution to be returned to Arter Hadden Haynes & Miller.
17
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DAT'01354
San Bernardino/Heritap
Final Resolution
1 60289/29550-DA-M1354
2 RESOLUTION NO.
3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL
4 OF THE CITY OF SAN BERNARDINO RATIFYING AND
APPROVING AN AMENDED COMPANY NOTE,A CERTAIN
5 PURCHASE AGREEMENT AND CERTAIN RELATED LOAN
EXTENSION AND MODIFICATION AGREEMENTS OF
6 HERITAGE OFFICE BUILDING, LTD., A CALIFORNIA
LIMITED PARTNERSHIP,THE CITY AND IMPERIAL BANK
7 RELATING TO A CERTAIN INDUSTRIAL DEVELOPMENT
REVENUE NOTE (HERITAGE INVESTORS) (SMALL ISSUE
8 EXEMPTION - $10,000,000 MAXIMUM) DATED
DECEMBER 15, 19819 AND AUTHORIZING CERTAIN
9 ACTIONS RELATED THERETO
10 WHEREAS, there has previously been filed with the City of San Bernardino,
11 California the "City"),( ty ), an Application pursuant to the provisions of Ordinance No. 3815, as
12 amended, of the City, by Heritage Investors, a California general partnership ("Heritage
13 Investors"), requesting the issuance of industrial development bonds in the principal amount
14 of$1,100,000;
15
16 WHEREAS, on December 15, 1981, the City loaned an amount equal to
17 $1,100,000 in the form of a tax-exempt permanent loan (the "Loan") for the purpose of
18 financing the costs and expenses of acquiring a commercial office and shops building as more
19 particularly described in said Application;
20
21 WHEREAS, in consideration of the Loan made by the City, Heritage Investors
22 executed a certain Promissory Note Secured by Deed of Trust(the"Original Company Note");
23 and
24
25 WHEREAS, the Mayor and Common Council has previously approved and
26 authorized the execution and delivery of various documents and certain Project Agreements
27 with Heritage Investors, a California general partnership, in connection with the Loan; and
28
DAT01354
9
San Bernardino/Heritage
Final Resolution
1 60289/29550-DAT-O 354
2 WHEREAS, one of the Project Agreements relates to the Original Company
3 Note issued in the initial aggregate principal amount of $975,000 (the 1975,000 Project
4 Agreement"); and
5
6 WHEREAS, the $975,000 Project Agreement provides that such Original
7 Company Note may be extended at the option of Imperial Bank (the "Bank") for an
8 additional period of time, but no more then ten (10) years from the principal payment date,
9 being December 15, 1992; and
10
11 WHEREAS, the Bank has entered into an Extension Agreement dated
12 January 7, 1992, together with certain other related instruments (collectively, the "First
13 Extension Agreement"), with Heritage Office Building, Ltd., the successor of Heritage
14 Investors (collectively referred to herein as the "Company") which modified the Original
15 Company Note to extend the maturity date of the Loan for an additional six (6) months; and
16
17 WHEREAS, on the extended maturity date being June 15, 1992 (the "First
i8 Extension Date"), the Company and the Bank verbally agreed to further extend the maturity
19 date through and including December 15, 1992 (the "Second Extension Date"); and
20
21 WHEREAS, the City did not participate in (a) the initial decision of the Bank
22 to extend the term of the Original Company Note pursuant to the First Extension Agreement
23 or (b) the verbal agreement to further extend the term of the Original Company Note to and
24 including the Second Extension Date (herein referred to as the "Second Extension
25 Agreement"); and
26
27 WHEREAS, the Bank has agreed to extend the maturity date of the Original
28 Company Note pursuant to a certain Loan Agreement and a certain final Modification
DAT01354 2. 'l
San Bernardino/Heritage
Final Resolution
1 60289/29550-DAT01354
2 Agreement with the Company and the Amended Company Note for an additional nine (9)
3 years if such an extension will not affect the exclusion of interest on the Note from gross
4 income for federal tax purposes; and
5
6 WHEREAS, the Bank proposes to sell the Amended Company Note to a
7 private buyer pursuant to a certain note purchase agreement and the Company agrees to pay
8 loan payments required under the Amended Company Note; and
9
10 WHEREAS, the Redevelopment Agency of the City of San Bernardino (the
11 "Agency") has agreed to provide a guarantee (the "Guarantee") to the Company for the
12 purpose of providing additional security for the payment of the Amended Company Note, a
13 form of which has been prepared and is presently on file with the Secretary of the Community
14 Development Commission (the "Commission") of the Agency; and
15
16 WHEREAS, the Bank and the Company wish to have the City provide official
17 approval of the extension of the Original Company Note as evidenced by the Amended
18 Company Note pursuant to which the principal payment date shall be extended for an
19 additional nine (9) years and to approve the sale of such Amended Company Note; and
20
21 WHEREAS, the Mayor and Common Council now deem it desirable to ratify
22 certain prior acts of the Bank and the Company, to approve the extension of the Original
23 Company Note in accordance with the provisions of the Amended Company Note and certain
24 other related documents, the form of which are presented at this meeting and which are
25 attached as Exhibits hereto.
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DAM-354 3.
C�
San Bernardino/Heritage
Final Resolution
1 60289/29550-DAM354
2 NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE
3 CITY OF SAN BERNARDINO DO HEREBY FIND, RESOLVE, DETERMINE AND
4 ORDER AS FOLLOWS:
5
6 Section 1 The recitals set forth hereinabove are true and correct in all
7 respects.
8
9 Section 2. The Company and the Bank have previously entered into that
10 certain loan agreement pursuant to which the Bank has made a loan (the "Loan") to the
11 Company, that Loan being evidenced by the Original Company Note dated December 15,
12 1981. The Mayor and Common Council, acting for and on behalf of the City of
13 San Bernardino,hereby approve the extension of the Original Company Note-pursuant to the
14 terms of the Amended Company Note and certain other documents related thereto with
15 Heritage Office Building, Ltd., a California Limited Partnership (successor to Heritage
16 Investors, a California general partnership), substantially in the form attached hereto as
17 Exhibit "A" and incorporated herein by reference. The Mayor and Common Council, acting
18 on behalf of the City of San Bernardino, hereby authorize the execution and delivery of the
19 Amended Company Note in accordance with the terms of such Note and a certain
20 Modification Agreement as hereinafter described. The Amended Company Note is being
21 executed and delivered in an aggregate principal amount not to exceed $863,939.15,with such
22 corrections, changes, modifications, additions and deletions as may be approved by Sabo &
23 Green, P.C., as Bond Counsel and Arter Hadden Haynes & Miller, Los Angeles, California,
24 as Special Tax Counsel and recommended to the Mayor and Common Council and approved
25 by the Mayor and the City Attorney.
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DATO1354 4.
9
San Bemardino/Heritap
Final Resolution
1 60289/29550-DAM-1-54
2 Section 3 The First Extension Agreement and the Second Extension
3 Agreement are hereby ratified and the Final Modification Agreement is hereby approved, in
4 the forms attached hereto as Exhibit "B" and incorporated herein by reference (collectively,
5 the First Extension Agreement, the Second Extension Agreement and the Final Modification
6 Agreement are referred to herein as the "Extension Agreements"), and as executed and
7 delivered by the Bank and Company, together with such corrections, changes, additions and
8 deletions and may be approved by Bond Counsel and Special Tax Counsel and recommended
9 to the Mayor and Common Council and approved by the Mayor and City Attorney.
10
11 Section 4. The Mayor and Common Council, acting for and on behalf of the
12 City of San Bernardino, hereby approve the sale of the Amended Company Note pursuant
13 to a certain note purchase agreement (the 'Purchase Agreement"), by and among the
14 Company, the Bank and Investment Consultants Corporation, a California corporation (the
15 'Purchaser"), relating to the sale of the Amended Company Note, substantially in the form
16 attached hereto as Exhibit "C" and incorporated herein by reference, together with such
17 corrections, changes, additions and deletions as may be approved by Bond Counsel and
18 Special Tax Counsel and recommended to the Mayor and Common Council and approved
19 by the Mayor and City Attorney.
20
21 Section 5 The Mayor and Common Council hereby approve the Guarantee
22 of the Agency to the Company for the purpose of providing additional security for the
23 payment of the Amended Company Note pursuant to the terms of the Guarantee and other
24 instruments and documents related thereto, and hereby authorize the execution and delivery
25 thereof by the Mayor or any officer or representative designated thereby to execute such
26 documents.
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DAT01354 5.
l Section 6. The Mayor, the Mayor Pro Tem, the City Manager, the City
2 Attorney, the City Clerk, and certain other authorized officers of the City and any other
3 authorized City official, officer or employee to the extent necessary under the circumstances,
4 are hereby authorized to execute any and all documents as may be requiredto consummate the
r�
` transaction contemplated by the Amended Company Note, the Extension Agreements and the
G
Purchase Agreement in the forms attached hereto as Exhibit "A", Exhibit "B" and Exhibit "C",
7
respectively.
8
9 Section 7. This Resolution shall become effective upon its passage and
10 adoption hereof.
11 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the
12 Mayor and Common Council of the City of San Bernardino at a meeting thereof, held on the
13 day of , 1993, by the following vote, to wit:
14
15 Council Members: AYES NAYS ABSTAIN ABSENT
16 ESTRADA
17 REILLY
18 HERNANDEZ
19 MAUDSLEY
20 MINOR
21
POPE-LUDLAM
22
MILLER
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Rachel Clark, City Clerk
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1
2 The foregoing resolution is hereby approved this day of , 1993.
3
4 W. R. Holcomb, Mayor
City of San Bernardino
5 Approved as to form
6 and legal content:
7 James F. Penman
City Attorney
8
By:
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San Bernardino/Heritage
Final Resolution
1 60289/29550-DAT01354
2
EXHIBIT A
3
4 Amended Company Note
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DAT01354
$863,939.15
AMENDED PROMISSORY NOTE SECURED BY DEED OF TRUST
From Heritage Office Building, Ltd., a California Limited Partnership
to the
City of San Bernardino, California, a Charter City and municipal corporation
March 30, 1993 Inglewood, California
FOR VALUE RECEIVED, Heritage Office Building, Ltd., a California
Limited Partnership (successor to Heritage Investors, a California general partnership)
(collectively referred to herein as the "Company"), promises to pay to Imperial Bank, a
California corporation, or any successor thereof (the 'Bank") on behalf of the City of
San Bernardino, California (the "City") at the address indicated below or at such other
location as the Bank shall designate in writing, or at such other place as the holder of this
Note may from time to time designate, the outstanding principal sum of Eight Hundred
Sixty Three Thousand Nine Hundred Thirty Nine Dollars and Fifteen Cents ($863,939.15),
plus interest as computed below. The Promissory Note Secured By Deed of Trust of the
Company dated December 15, 1981 (the "Original Company Note"), as amended by this
Amended Promissory Note Secured by Deed of Trust is hereby referred to as the"Amended
Company Note'; and the Original Company Note and the Amended Company Note are
collectively referred to herein as the "Company Note". Any capitalized terms used herein
and not otherwise defined shall have the meanings ascribed to them in that certain$975,000
Project Agreement dated November 16, 1981 (the "Project Agreement"), by and among the
City, the Bank and the Company.
Interest on the Company Note shall be payable on the outstanding principal
amount of the Company Note calculated on a 360-day basis at a rate equal to sixty-five
percent (65%) of Prime Rate plus two percent (2%). For purposes of making such
adjustment 'Prime Rate" shall mean the weighted average for the immediately preceding
three (3) months. In the event that the Bank shall fail to establish or publish a 'Prime
Rate," then, for purposes hereof, the "Prime Rate"shall be deemed to be the average Prime
Rate for the three (3) largest (total assets) banking institutions in the State of California
then publishing a Prime Rate. Payments of principal and interest on this Company Note
shall be paid in equal monthly installments, calculated on the basis of level amortization
over a period of thirty (30)years with an initial ten (10)year due date (being December 15,
1991) as extended to and including December 15, 2001, on the first day of each month
commencing on the first day of the month next following the execution and delivery of this
Amended Company Note. The total principal amount of this Amended Company Note shall
be due and payable in full on December 15, 2001, in accordance with certain written
extensions executed and delivered by the Bank pursuant to Section 4.02 of the Project
Agreements unless such date is accelerated as hereinafter provided. All payments shall be
in lawful money of the United States of America and shall be applied first to interest and
the remainder, if any, to principal.
9
It is the intent of the City, the Bank and the Company that payments on the
Company Note shall be in an amount fully sufficient to pay all payments of principal and
interest on the City Note together with any fees of the City or any service of the Loan.
Payment on the Company Note shall be deemed to constitute payment on the City Note
without further delivery by the City. This Amended Company Note in the principal amount
of $863,939.15 and any accrued interest thereon, together with the applicable City Note,
Project Agreement, Extension Agreements and related security documents, are a prior lien
with respect to any other obligation of the Company, including the applicable related
security documents.
Except as otherwise set forth herein, this Amended Company Note is subject
to all of the terms and conditions contained in the Project Agreement, Deed of Trust and
the Resolution of Issuance, executed, acknowledged and delivered on or prior to the date
of the Original Company Note by the undersigned or the City to the same extent as if such
documents were set forth in full in this Amended Company Note and the same are hereby
incorporated by reference.
The Company Note is secured by the Deed of Trust on the Project, which
Deed of Trust constitutes a first lien on the Project and such other security instruments as
provided in the Project Agreement.
The Company Note shall become immediately due and payable prior to
maturity without notice in the amount and under the circumstances as provided in the
Project Agreement, including upon the occurrence of an Event of Taxability or an Event of
Default. The Company Note may be prepaid at the option of the undersigned in whole or
in part on the dates and in the amounts as provided in the Project Agreement. The
undersigned agrees to pay all costs of collection when incurred, including but not limited to
reasonable attorneys' fees. If any suit or action is instituted to enforce the Company Note,
the undersigned promises to pay, in addition to the costs and disbursements otherwise
allowed by law, such sum as the court may adjudge reasonable attorneys' fees in such suit
or action.
If any payment due hereunder is delinquent ten (10) or more days, the
undersigned agrees to pay a late charge in the amount of five percent (5%) of the payment
so due and unpaid in addition to said payment; but nothing in this paragraph is to be
construed as any obligation on the part of the holder of the Company Note to accept
payment of any installment of less than the total unpaid principal balance after its due date.
In the event of default in payment of the Company Note in full upon maturity,
the interest rate thereafter shall be increased to the then current Prime Rate plus five
percent (5%) of the unpaid balance, but in no event shall interest exceed eighteen percent
(18%) per annum or such higher interest rate allowed by law.
Defaults shall include, but not be limited to, the failure of the maker to pay
principal or interest on this Company Note when due or any other sum due under the Loan;
breach of or default in the due observance and performance of any covenant, condition or
agreement to be observed or performed under this Company Note or pursuant to the terms
aro,.,, -2-
of the Project Agreement or the Deed of Trust which breach or default is not cured within
the applicable time period permitted under the Project Agreement; the filing as to each
person obligated hereon (including any general partner of the Company or subsequent
owner of the Project if the Company sells or transfers the Project as provided in the Project
Agreement),whether as maker,co-maker,endorser or guarantor(individually or collectively
referred to as the "Obligor"), of a voluntary or involuntary petition under the provisions of
the Federal Bankruptcy Act; or the issuance or levy of any writ of execution or attachment
or any similar process against all or any portion of the Project or the entry of any judgment
involving monetary damages against the Company which becomes a lien upon all or any
portion of the Project, which execution, attachment or similar process is not released,
satisfied, vacated, stayed or otherwise dismissed within the applicable time period required
under the Project Agreement.
If the Company Note is not paid when due, each Obligor promises to pay all
costs and expenses of collection and reasonable attorneys'fees incurred by the holder hereof
on account of such collection, plus interest at the rate applicable to principal, whether or
not suit is filed hereon. Each Obligor shall be jointly and severally liable hereon and
consents to renewals, replacements, and extensions of time for payment hereof, before, at,
or after maturity; consents to the acceptance, release or substitution of security for the
Company Note; and waives demand and protest and the right to assert any statute of
limitations. The indebtedness evidenced hereby shall be payable in lawful money of the
United States. In any action brought under or arising out of the Company Note, each
Obligor, including successor(s) or assign(s) hereby consents to the jurisdiction of any
competent court within the State of California, and to service of process by any means
authorized by California law.
Any payment to be made under this Amended Company Note shall be made
when due at the Principal Office of the Bank at:
Imperial Bancorp
9930 South La Cienega Boulevard
Inglewood, California 90301
Attention: Trustee Services
The Company Note is governed by California law.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts,
conditions and things required by the Constitution and statutes of the State of California,
the Ordinance, the Project Agreement and the Resolution of Issuance referred to therein,
to exist, to have happened and to have been performed precedent to and in connection with
the execution and delivery of this Amended Company Note, exist, have happened and have
been performed in due time, form and manner as required by law.
When the identify of the undersigned makes it appropriate, the singular shall
include the plural and the plural shall include the singular.
""0121, -3-
9
IN WITNESS WHEREOF, Heritage Office Building, Ltd., a California
Limited Partnership, has caused this Amended Company Note to be signed by its
authorized officers, all as of the day and year first above written.
HERITAGE OFFICE BUILDING, LTD.,
a California Limited Partnership
(the "Company")
By:
Russ E. Hatle, General Partner
By: Fox Brothers, a California General
Partnership,
General Partner
By:
Raymond Fox, General Partner
«.0111,
9
San Bernardino/Heritage
Final Resolution
1 60289/29550-DAM354
2 EXHIBIT B
3
4 Extension Agreements
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
DAT01354
C
RECORDING REQUESTED B'
WHEN RECORDED MAIL TO COPY
9920 S.l ,La
IJWJLC PDC d. C.M. 90
Attn: L. ig&Ia,}t
SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY
Loan Number - tins
Uxteraian 21
MODIFICATION AND/OR EXTENSION AGREEMENT
(Short Form)
The under�d agree that a cerUtin peed of Trust dated 15 . ig�g� , recorded on
> �ttbet l9 1! 82, as Instrument Nurntaer al-274344 Ofticittl Records in
the Office of the County Rocordar of SarLl3ataer+�a County. California and th• Note scoured orris in
dated. 15 . rn he anginal principal sum of = 97390M.00 be amended
upon the terms and conditions set forth in that certain M"Ilcation an&or E
�«uy 7 xtension Agreement between the undersigned
dated, J 1 e 92 . S8b Modification and/or amOnslon Agreement IS by thtA reference ln•
eorporated herein erIJ flwde a part hereof.
IMPERIAL BANK. o Cait mid co n BORROWER(S)ITRUSTOR(S)
iitage O"Lea Buildin g,g, Ltd., a Calita"Uts By A c
ey Robert L. size, I Jr., Senior Ptae Preaidest
ieiaa S. not,A, r
Anyizied i
s
Pnz r Ganibral Partner
ry
Jroz. P+t►rwr
Stato r Catifornia )
County
On , before me, a notary puWW in and for said R'. State, pens fly appeared
personally known to (or provyd to me on the basis of satisfactory evidences) to be the persons so name(&) Istare
sutaatritwel to the within swinwnt and acknowledged m me that he or she executed d% same in eapaeity(iss) indicated
at she signature point,
WITNESS my hard and orrieio
-Signature (Seal)
Capacity of Signatory
state of California )
County of
On , before me, a notary pubti ' and for said state, personalty appeared
personally known to me (or prov W me W► %he basis of satisfactory evidence) to D the person($) Whose name(s) is/ara
subscribed to the within ln6tru nt and acknowledged to me that he or she executed the me in the capaeirylies) indicated
at the signature point.
WITNESS my nand official }sal.
gnsture (Sew)
Capacity of Signatory ti—i ssr.1 y c•. Fh-,a=;cisrrt
nfa rt otev a,y•f
1S�ate of California )
State of California y
� SS.
Cuuny of Los Angeles -
on FabrusrY 25. 1992 , before me, DIANA L. KONG; , Notary Public, personally appeared
ROBERT E. MITCHELL. ,M._ . personally known to me (or proved to me un the basis
of satisfactory evidence) to be the persons) whust name(s) is/are subscribed to the within instrument mad acknowledged w nu that
helthe/they executoJ the same in his/heNtheir authorised capacity(ies), and that by hislher/dheir signature(s) un the instrument the
persun(s), or the cagily upon hehalf of which the pemson(s) actod, executed the instrument.
WITNESS my hand and official seed.
tscry�kONQ
� HOg CELLES�ADtx%j Y
j,�l2vs. . L Y.CKl (Sail) h'� �on�axpfrva
17. 7 G9S
• Capacity of Siputory: Senio Vice President of Corporation
State of C rat ,)
County
On �y �9�►� , before tae
Notary Public, a lly appeared : "� personally lcaotnn t me
} to be the person(s)-whose nazwW
isLos�e subscribed to the within instrument and acka wledged. to the that hasbev+ey
executed the wane in authorized eapultyW, and that by hbAwrgheir
signature(O on the instrumnt the penonW, or the entity upon behalf of which the
penoa(6}acted, executed the Instrument.
OFFro"
WrINUS my hand and otncial seal. WARLx K MUPMr
NO"Otwtt"GOWNW
t;csnrfz tae.MW 1,1=
Signature - �,•c , , L.: (Soap
Capacity of Signatorw.� Gener&Ux a
State of Car' 'M*7 County orl
On before me ,-.F
Not Public, personally appeared, :,: r e.. n I, �.. �„ , personally known
to me (or proved to me on the basis of satisfactory evidence) to be the pawn(s) whose
name(s) Ware subscribed to the within Instrument and acknowledged to me that heishe/they
executed the carne In hts/her/their authorized capacitypa), and that by his/her/their
signature(s) on the Instrument the person(s), or the entity upon behalf of which the
persons) acted, executed the instrument.
OFFIC7ZF,
WITNESS my hand and official seal. �LY
. air mr.+ti
34PUture �1'.c 1 •'S, _�a•Y (Seal)
Capacity of Signatory;_General PsrtneQ
State of Ca Uf rnia )
County of :1 s
On ,._.. :+ before we
Nola Public, 06,sani1V appeaM
tn �- .` '' °' pe
a(or proved to me on the basis of satisfactory eridenet)to be the person(s) whose name()
is/an subscribed to the within instrument and acknowledged to me that heta
executed the same is authorized capacity, and that by M%NwAbdr
slgnahm(O on the Instrument the person(), or the entity upon behalf of wbicb the
pen;*nW acted, executed the instrument.
WITNESS my hand and official seal. a C eF 110 15AM-Ay ft"PAft-Caft"ft
MOW-
Signature (Seal)
Capacity of Signatoryt General ftrtneru
0110% WEIRWIls
WHEN RECORDED MAIL T/
IMPERIAL BANK
9920 S. 1a Ciermaga &Iva.
znglewood, Ca. 90301 COPY
LOAN NUMBER: 005
SPACE ABOVE THIS LIME fOA RECOAOEA'S USE okly ��•
>iDCtorssion •1 MOOIFIC:ATION AND/OR EXTENSION AGREEMENT
This AGREEMENT is made as of _Janwlj v 7 . 19 92 , by and between IMPERIAL BANK
(hereiridfLer referred to as,*Bank')and A°�;�� r>FFf..s w,+1ai:,� --
�_, e Caliiryrnia limitt�
pg�trterE lip, formeril► Heritage 1829kaa:s, a (hereinafter referred to as'Borrower").
17w 7:fnrn>> ��c"g cin
e
lank has made a loan evidenced by a premissery note dated E cumber 15 , 19 11_, in the
original amount of i 975r000.O0 ('The Note'),whI01 is secured by a deed of trust(the "Deed of
Trust`)dated r= vc t c 19 _al_,recorded as.Instrument No. 81-274344
in the Office of the Recorder of San Hornardine COUntir, California. The Note
(as extended to _ n/A , It Za_)has an unpaid balance of S &G7-98D.92
as of the date hereof. Borrower desires to modify the terms of the Note and to cure defaults, if any, under the Note
and Deed of Trust.
In consideration of the mutual COvenanls herein contained,lank and Borrower agree as follows:
t. That the maturity of the Note shall be extended to -7=1e 15
2. That ReLer La Exhibit art' AttREW Aerrato and by this referegseo exacta A cart hereof
3. That this Agreement Is an extension and/or modification only and not a novation, and will be in full force and
effect only upon receipt by Bank of:
(a) TN S AgreMrnent executed by all parties;
(b) Payment of Delinquent interest,if any;
(c) The modification and/or extension fee of S aj;75_m or, alternatively, the Agreement
which provides for deferred payment of the modification and/or extension fee of i
executed by Borrower asset forth on the reverse hereof;
(d) Payment for any and all recording fees and title company fees for title company services or endorsements
as may be required by Bank, including without limitation, a CL.TA Endorsement No. 1 10.6 or ALTA Endorsement No.
10.S;
(e) Verification that record and legal title to the property encumbered by the Deed of Trust is vested in
Trustor, that shore are no encumbrances or liens on the property senior to said Deed of Trust other then taxes land
assessments, and that any or all delinquent taxes and assessments which are a lien on the property have been paid or
will be paid as of recordation of this Agreement,except: ®No Exceptienf ❑ Items shown on the reverse hereof;
(f) Docun+ent fee of S A _ee
A. Bank hereby agrees to the amendment of the terms of the Note only to the extent herein specifically set forth
on the condition that such amendment shall not prejudice any other existing or future rights, r medies, benefits or
powers belonging or accruing to Bank under the terms of the Note as hereby amended, or of the Deed of Trust.
Further, in consideration of this Agreement, the provisions of Section 28aZ of the Civil Code of California, the
presentment of the Note to the maker, demand of payment, protest, notice of dishonor and notice of non-payment
are hereby waived.
S. Should default be made in the payment of principal or interest when due,Or in the performance or observance
when due, of any term, covenant or condition of any deed of trust, security agreement or other agreement
(including amendments or extensions thereof)securing or pertaining to the Note, at the option of the holder thereof
fond without notice or demand, the entire balance of principal and accrued interest then remaining unpaid shall (a)
become immediately due and payable, and (b)thereafter bear interest, until paid in full, at the increased rate of 50A
Per V*Af ;n excess of the interest rate provided for in the Note, as it may vary from time to time, but not less than
6. In all other respects, not inconsistent herewith, the terms of the Note shall remain in full force and effect, ano
tf+e Deed of Trust Sildil otherwise remain unaffected,unchanged and unimpaired.
7. Any and all security held lay Ban4 as collitardl frx the payment of the Note,including the Deed or Trust, may be
enforced by Bunk concurrent) , independently. in such order as lank may determine; and with reference to any such
security, in addition to the feed of Trust, Dank may, without consent of or notice to any maker or guarantor,
exchange, substitute of release such security without affecting the liability of any maker or guaranter, or any of
them. and Bank may release any one or more parties thereto or permit the liability of any such party or parties to
terminate without affecting the liability of any party or parties liable thereon.
IMPE B K,a C lif rnia or anon Borrower:
BY' W. ROF4 to jL9h bid, 'A' et:t.ached hereto
Title
My: end by this r+p£erenoe incarpp"t;ed hereis
=obart R. K3 tcb4;n, Jr., Sealer vice President
APPROVAL OF JUNIOR LIEN HOLDERS
n/a MITI
.y: By, nF�
.,., Title tie
ALL SIGNATURES MUST BE ACKNOWLEO'GEO BEFORE A NOTARY PUBLIC
At IS Maw 4M) conrinuld nn Nevetle
q
EX=rT "A• ATTACHED TO THAT CERTAIN MODIFICATION AND/OR
EXTENSION AGREEMENT DATED JANUARY 7, 1992 EXECUTED BY HERITAGE
OFFICE BUZIMING, LTD., A CAL17ORNIA LDUTED PARTNERSHIP.
EXHIBIT "A"
2. That the interest rate charged in connection with the Nate shall be changed to Two
and one half percent (Z.3%) per annum in exeess of Bank's prime Rgte, provided,
however that such rate of Interest shall not be reduced to an lnterem gate which is
lower than Tea percent (10.0%) per annum. The effective date for this change shall
be December 16, 1991.
ALL OTHER TERMS AND CONDITIONS SHALL REMAIN THE SANE.
HERITAGE OFFICE BUILDING, LTD.,
a California limited partnership
By:
Russ E. Halle, neral Partner
By: Fox Bros., a CaLlfornla general partnership,
General Partner
laymond Fox, General Partner
Sam Foal, General Partner
State of califomia y
l ss.
county of Los Angeles t
On gobruary 25. 1992—, before me, 016NA L. KOX2 . NoW7 Public, persaeally appeased
gggggT E. miTCHELL_ JA. , personally imowo to tae (or proved to me ca the bags
of satisfactory evidence) to be the roernae(s) whose name(s) is/ate subscribed to the within instrument aail acknowledged to me that
fie/shehhey sixiwutad the ,carne in hislittr/their authorized captcity(iea), and that by hulher/their sigumfe(s) on the instrument the
persort(s). or the entity upon behalf of Which the persoa(s) acted, executed the iastrunseat.
WITNESS my hand and official serl.
Na tie•Ca!,".en++C
/ • L�yGy=�33t:1.ES�:aL'N7v
ar/ IUs L �.a.0 ($sal) 7M�IeInbs1/17.n E.G s
Capacity of Signatory: Senior Vice Preaideat -d-Corporation
pucuy ut *t#nucury: AEUM13 v A$.& rxr-Qwr rt t \
State of-California )
County of% t.L-,.z
On �.ii..c.. ,c.c /t_' '`%_C' c before me �.L'�`J'Z�� /t•/c i��4 e
� '
Notary public, pei�aaliy appeared �-,�.. "'�'. - 'fw�.�« �� rally known to ine
,•-� to be'tbe personK whose oame(o
is/on subsenInd to the within instrument and acknowledged to me that bWsheo
executed the same in his 4iheir authorized capacity(W, and that by ha it
signatureW on the inA went the person(Q), or the entity upon behalf of which the
person(o acted, executed the instrument.
oFtloi^L
WITNESS my band and official seal. ��,�MV Y
Mr oetr+rn.tun,trey+.,s+sx
Signature
Capacity of Signatory: a
State of California X.4 ) ,
County or._11 ' y i
On - , . ..: L. , before me
Notary Public, pgrsonsliy appeared ;yam, personally lmown
>r.
to the (or proved to me on the basis of satisfactory evidence)�to be-the person(s) whose
name(s) Ware subscribed to the w"in Insttvment and acknowledged to the that he/she/they
executed the same in his/her/their autborized capacity(les), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the labtnuaent.
oFF
WITNESS my Land and ofTicial seal. Y h�MW
aiwat oou+rrr
low as„n, t4.rer I.I spa
(Seal)
Capacity of Signato
State of California,, )
County of
On before me
Notary, blic, p&soaally appeared - � "" —' nary known
petso
�� to
me Or proved to me on the basis of satisfactory evidence) to be the persons) whose names)
is/are subscribed to the within instnmsent and acknowledged to me that be/she/dW
executed the same in hislber/their authorized capaclty(ks), and that by hWhertthelr
signature(s) on the imumment the person(s), or the entity upon behalf of wbkb the
person(g) acted, executed the instrument.
WITH SS my hand and official seal. oev Y IL I UPMY
v�+�+�ao�an"O11r
1MOi��Wt� liet
Signature ' �:: �,[' (Seal)
Capacity of Signatory: l NAxtqrJ-
WS=UN!P!T1tFNMAIC1Re0 W MTV" N0"
AMENDMENTZOF�,ROMISSORVO,T!St
S GREEiNEi�a n~a a "ls s Mida�no,s�ry;�7��892, by and among
H(�rtage lnwoator
California general partnership tha�.$orc �rgr ) erfiaA llf;tfs
IL411dinig i_ td%a California Ilrnited partr�orahipl l�" in lerae )and IMPERIAL RANK,
a Caiiforn i banking Corporation (the'Bank-).
WHEREAS, the Bank made a loan (the -loan* to the Borrower which is
evidenced by a ftoVnU_SOry No eeured by Deed of Trust (the 'Promissory Note'),
dated boCO tiq 5" 8�,, in the original principal sum of Nine Hundred Seventy Five
Thousand and no/700 - - - - - - - Dollara (0975.000.00), which is secured by a Deed
of Trust and Assignment of Rents (the 'Deed of Trust'), covering real property
described In said Deed of Trust (the 'Property'); end
WHEREAS, lv�ii €fri" a�r0 eis Cg pr. i'ss"� oqutid: sPtl
P"iWd.end
vvHIEisFABL i 1>ie� j :ea>od� t arik ,a5"o
,, 64,eriiom� s 1 etr
and r' mAssoryr4llots +srl4�Dal�Dt Tii�st�'rrib�Ba'' 6ri. 'preid�eo' ucfi"�, i�Tp glow'
WHEREAS.ffirons tereoAasires,I"titsfn�l+i onsets'Ott s�i;k�to�ira'ni���t np�r
NOW, THEREFORE, It Is agreed as follows:
1. Transferee hereby assume& the obligation to pay the indebtednesa
evidenced by the Promissory Note,in accordance with the terms of the
Promissory Note and all extensions, renewals, modifications,
amendments and replacements. if any, thereof, and to perform and
observe all of the Borrower's obligations contained in and in see rdanee
with the provisions of sold Deed of Trust, and any and all other
documents evidencing or securing the Loan ('Loan Documents"), and
agrees to be bound by each and all of the terms and provisions of the
Promissory Now and Deed of Trust, all as though the Promissory Note
and Deed of Trust, and the Loan Documents and each of them, had
originally been made, executed and delivered by Transferee.
2. The Bank hereby consants to the transaction as disclosed by Transferee
and the Borrower, and (a) releases Borrower from any liability or
obligation under the Promissory Note, the Deed of Trust, and the Loan
Documents, from and after this Gate, and (b)will not esereleo any option
to declare all sums secured by the Deed of Trust to be immediately due
and payable on account of the acquisition of the Property by Transferee;
provided however, that such consent by Bank shall not be deemed or
construed as a waiver of any provision requiring the Bank's consent In
the event of any transfer of the Property, and the consent of the Bank
shall be required on all successive occurrences.
3. Transferee acknowledges and ogress that it assume& and agrees to pay
to Bank the full surd of $387,500.82, the current principal balance owed
to Bank under the Promissory Note, plus Interest from and after the date
of assumption of said obligations thereunder at the rate specified In the
Promissory Note. ,
4. To the extent that any of the provisions of the Promissory Note conflicts
with any of the provisions of this Agreement, the provialone of this
Agreement shall provail, but In all other respects, the Promissory Note
and all terms and provisions of the Dead of Trust shall remain in full
force and affect.
yOL"
1 k,
r.Q �r
5. The propb..r ,nail remain subject to the lien, .n, ae and encumbrance
of the Dead of Trust, and nothing herein contained or done pursuant
hereto shall affect or impair or be construed to affect or impair the Ilan,
charge or encumbrance of tns Deed of Trust or the priority thereof over
other Ilona charges or encumbrances, It anv, or to release or affect the
liability of any party or parties whomsoever who may now or hereafter
by liable under or on account of the Promissory Note end/or Deed of
Trust, except as may be provided heroin.
e. This Agreement applied to, Inures to the benefit of and binds all parties
hereto and their respective heirs, legatees, devisses, administrators
executors, successors and assigns.
7. In this Agreement, whenever the context so requires, the masculino
gender includes the feminine and or neuter, the singular includes the
plural and the plural includes the singular.
IN WITNESS WHEREOF,the parties have executed this Agreement on the day
and year written above.
'Bank' IMPERIAL BANK.
a California banking corporation
P; aiia 4 as
It4bsrt: E. >sisebsll, 1r. Saslow •gas PraaidAnt
oorrower�
Heritage Investors, a California general partnefship
6yt Heritage Properties, Ltd., a California Rmited
partnership, General
_ 9y:
RM , noal paroser es E. g
gy; Fox Biros., a gene partnership,general partner
ILsynwnd Fox, general partner
Sant Fox, genera! pervw
'Transferee' Heritage Om0", uildin d.,s Celifo►nla Ilmited partnership
By:
as !. Haui7beh oral parer
By.. Fox BROS., s Conlon in general partnership,
general partner
OV
�Rsi4ond Fox, penerai partner
-7' Sant Fox, general partner
2
9
State of California )
County of .IY
t
On - : ;� , before me t:,• rV, „
Notary Public, personally appeared ' — %�- . personally own
to me (or proved to me on the basis of sstlsfaaory evtdeace) to be the persons) whose
nam (s) Ware subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in hLs/her/their authorised caparity(ies), aad that by his/her/their
Adguature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the Instrument.
WITNESS my hand and ofriclel seal. g tr w AY
�w+oE
Mr*Ma rs•m r 1.trot
Signature (SeaD
Capacity of Slgnat General Partner
State of Califorda, 2
County of,,Iv .4e
On `�%. < <.�,, ,;� 4 �► . before me +,? Eti F�'.c_�L v�=
Nota�Public, poliTanally appeared """"^" "" kim owl,
ma(or proved to me on the basis of satisfactory evidence)to be the permon(s) whose name(4
Wage subscribed to the within Instrumeat and acknowledged to me that heiey►
executed the same in UqZmAbeW authorized capackyW, and that by hisherEiheir
signature(*ors the instrument the person(a), or the entity upon behalf of which the
Person*acted, executed the iastnunent.
of
WITNESS my band and ofi'"l seal. Y it
*I
M cam`6m
SIgnatut! t A / '� ^ ' =.A t (SeAD
Capacity of Signatoryt General n
q
statr: of( aarn mi s 1
Stam of California )
) SS.
Cuunty ur Los Angeles )
On February 25. 1992 , before me, DIANA L. KONG , Notary Public. ptrsooYlly appeared
ROHE&T_E. MITCHELL. JR. , personally known to me (or proved to me on dw basis
of ratisractory evidcmx) to be the person($) Whose mume(s) is/art subscrihad to the within intt UMeDt mod acknowledged to me that
halshe/they executed the acme in his/her/their authorised capaalty(iex), had that by bis/har/their tdfaaturo(s) on the instant*= the
person(s). or the entity upon buMf of which the pervon(s) ttaual, oaautatl the instrurttent.
WITNESS sty hand and official seal.
DW�sA L�KDN�O
�'aN� t_ 'IrakJ (Sea1)
Capacity of Signatory: senior vice President of Corporation
State of Cali Mia )
County of
Notary Public, pe o appeared ' it W. naliy known to me
( ) to"6i'the personal whose name(
LsAmm subscribed to the within loge meat and acknowledged to me that hefsheolhey
executed the same in hi- -Omlmir authorized capacltyOW, and that by hisFbeeMbek
signature*) on the insumment the personOO, or the entity upon behalf of which the
person(} acted, executed the iutrumcat.
WITNESS my hand and olilcial seal. eEV0 +& T
rr LasttsR a.w b tt�es
Signature ' v-4 LZOA . ,,e.�..c (Seal)
Capacity of Signato
1
Recording Regtststcd br•
and wb as recorded vat to:
BANK
9920 S. L CkD= Blvd.
bWeewood, Ca. 90301
AM= L, Walsh
R=1 ssts sairices
JrAM AWVZ T=t=PUL 1RUMUMa'S Ltd 0MV
50—own XTo111'wG>i�EF11+ffi1�'!'
NOTICE: TMS SUBOWINAMN AGREMWT RESULTS IN YOUR IIN'IXRM n1T
T= PROPM Y 11 )MING SUNJ= TO AND OF LOWER PRIORrTY IHAN THE IMq OF
SOIM OTECEA OR LATER UZIMI Y INSTRUMENT.
_T>EOS AGxEEMEhTT,.made tala: b of aaatt� it92�'p7 Netita�e" ll4ae"� L?D ' :Calltordaioed
p�1h1C�' �P, OWY1E�'0[' 14�QdBahl� A > Y�' 1t� 0`tiOlDb�r� Elil3kr
it National Banks" Assadation, present owm and bolder of the deed air trust and note f1r t bwdat♦fter referred to as
"gen�neisrya.
THAT WBEREAB, Heritage Office Building, Ltd., a Calirornia Limited Pwvmnhlp did meorte a deed of tartwk
dated Septecab�er 12, 1990, to American National Bank„ a National Bank Awadadoa, as tree, a mmberinyg the property`,
legally doiaibed in Fzhibit 'A' attached hwu and by tJtit ref arssce incorporated herein, to secure a note In the sum tif'
SUZSAW.00, dated March 30, 1988, In favor of Anwiaa National bank, which deed of mt was rwmded April 4, 1984-
ere Tastrurnew No. 88497367, Official Regards of said County, and Is w4jas and subordinate to the deed of trust nett
t>aeinafter ddcribed; and
AREAS, Owner did cuxuw a deed of trust, dated Dwmber 1S, 1931, to ImpwW vancwp, a C&Uomla
Corpomdoo, as bwtes, covering the property leealiy described in F.uhlbk "A• attached Osrvto and by tats retwanee
incorporated Aerda, to secure a note in the sum of$973,000.00, payable with inttredt sand upon the tams and cortdidom
described dmdn, in favor of ImpearW Baniy a CAL'foesia Cocpustim bwalaafter referred to as *LmLdve, which deed of
trust wag recorded December 18, 1981 as Lstrurmat No. 81.270", OftkW Records of said county, and Is pdw and
superior to the dyed of trust a n&above wuntio e+d; nand
MEMAS, Owner, wgetber with Leader, has executed. or is about to cuzute, a modlAmdon agreeateet dated
janaury 1, 1992, modifyity the tcm a of due dead of trust ao&or note In favor of Leader as therein provided, whkh
modification agree mw It to be recorded eoeeurrtntly here+vith; and
WEMREAS, it Is a condition preeedmtt to obtaidq said nwdiBadon agremeel that said deed of trust in fervor ut
Lender, sa numbrted,shaJ1 continue to unc*n&doaaliy be and remain at all times a Han ow•dwge upon the land ha 4ribefore
described, prior and superior to the Best or dune of the dead of trn&A rust above memioned; and
11171
f
WHIMEAS, Under Is wdWI6 .o sae a;W said moditkztwa agruvwmt pee, .&d that the dad of trot in favor of
Linda as modired eaotinues to be a Vets or charge upon the above deaeribetd property prior and superior so the Uen or elsarge
of the deed of trW first Shove mentioned and prvvieied that Bernflciary wW spec;P,cally and I ad;t;oRally suhordlnate the
Best or charge of the deed or trt+it first above mentioned to the lien or shar=e of the deed of twat let favor of Leetder as
t"fiiedl and
WHMAS, it is to the mutual benefit of the parties bosom that Lender eras Into said modaAkadon sgrvuxmnt With
Owner; and Benseticiary is wiping that the deed of trust in favor of Lender as modified Constitute a lien or charge upon said
land which I$ utsconditierdUly prior turd superior to the Len or charge of the dad of Out first above mentioned.
NOW,THEREFORE, in tottaideratioas of the mutual benefits aaaving to the partim hereto and otber valuable consideration,
U* Mtipt and suMdenq of which Consideration k hereby ld=wledged, and In order to Induce Lender to meant the:
taodlikadom agreement above rdared to. it is lserchy declared, wudeastuW and agrtsd a futluwti:
(u That said deed of trust securing said now in favor of L.sndw as madiMd by the Inodiflesdon Agreement above
refertied to, and any renewals or atenslor>d thereof, shall watlm n in uaa,od Uumay be and remain at all times a Bore or
eltaags on the property the ran ewesWsd, prior and superior W the Iles of char`s of the deed of trust flat above nmadungL
(Z) That Lander would not aecute the asodiratim agrwnent above referred to without this RibonSuation
agraamanL
0) That this a 9 shall be the whole and only agreement between the parties bestitei with hard to the
subordination of tea lies,or dwr of ft dried Of trust trust above mentioned to the Uen or charge of the deed of trust In favor
of LmWer above referred to as modified, and shall supersede; acrd cattcd any pt ja agrwneno v to catch, or W,
subordination, Intludtng, but not limited w, ebose ptvviSIMM, if any, contalaW in the
dead of trust 1drat above tnitttiorfCd,
wh" provide for tae subordination of the Vein or charge therect to a deed or deeds or trum or to■mur%v4e or mortgages
m be tbereeafter eslfQited.
Benetidary declares, agree= and au:wDvieadge that
(a) He Consents to and approves(i)all provisions of the note and deed of treat in favor of Leander above rvlerred to,
(u) all provlsloas of the modification agreement above rdu7W to, and (iii) all agreements, including but not Waited to any
IOU or aanow agreemmis, between Owner and Lender for the dirbueweni of the proceeds of Lander', loan;
(b) Lander in rnahing disburmwents pursuant to sty such agreement It, and has been, under no obligation or
duty to, nor has Lender r+eprosmted that it has sera, or will see, to the appllcetion of all or any pt ti n of such proceeds by
the person of person:to whom Lender has disbursed, or hersfter disburses,such prvcaaeis and any appltaes+un ur use of such
proceeds, tberetofae or ber®fter made, for purpum otber than those provided for in suet agrwnent or agrwnnenta #hall
not defeat the subordination badn trade in wbiole or in part;
(c) He intendosally and aneonditionaly waive.rdinquwm and subordinates the priority and supa'iucity of the
deed of trust rest above mentioned in favor of the lien or dtale upon said land of the dead of tint in favor of Lander above
refMTM to as modified by the modifkadon agre rent above referred to, and utndea binds that is rel;aaee upon, and in
consideration of, this waiver,relinquishment and subordination spercifie laam and advances have beet and will be trade and,
as part and paced thereof, speriGe monetary and other obligations have been and will be entered into whkh would no have
beat, or be, made or entered into but for Bald refs—upon this waiver, rellNuishmastt and subordination; and
(d) An atdorument has been piacsd upon Mt rote centred by the deed of trust first above menntionW that said
decd of trust has by this h4buaeot been subordinated to 00 lien¢or d urge of the deed of trust In favor of Lerner above
rcfavW to as modified by the MWXa Uoa agreement above rdaT d to.
NOTICE: TffiS SUBORDINATION AGREFMLNT CONTAINS A PROVISION ROCS ALLOWS
THE PERSON OBLIGATED ON YOUX KF.AL PROPERTY SECURITY TO OBTAIN A IRAN A
PORTION OF WMCH MAY BE EXFE1iDED FOR OTHEit PURPOSES TI AN IKpROVEIMT OF
THE I.AND.
.>rIli
11 I
N ' J5 ,,me 01t3os Badmen.Led,,
a CaStassa is MAM paeaaasWp
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RM r6 113"k.rural -NMEMMP
�r
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AL6PURPOS!ACKNOWLEOaMtNT
FStats California CAPACITY CLAIMED BY SIGNER Q INOIVIDUAL(S)
y
in 02-20-91 ® CORPORATE
before ma. Cmuiie S. Emtett, Notary public
o•rF wl+m rm¢of or.,cE+Q•e a.•�.,�ooE,Nor.R.Pura+.IC' OFFICEA(9) AV?.
personal) G PAATNER(S) r�nel�
y appeared David R. pu8ose
,� o�t� , O ATTORNEY-IN-FACT
Q Persona)y,known to me-OR• C3 proved to me on the basis of satisfactory evidence TRUSTEE(s)
to be the Person(sq whose earn" istaw 0 $UBSCRteIN(e WITNESS
6UbSCrlbW to the within instrument and ac. C3 QUARDIAN40NSEFIVATOR
kncwledged to me that he/dwxkqcsxeMAW G OTHER:
. „ . the same in his/ @W authorized
AL
t, ,x*• LFr.C.ISijAL
C apaeit 0"). and that by him
s: •.:. signature("on the instrument the person(l)
c;��r, or theenthyuponbehalfofwhichthe rso SIGNER( REPRESENTING:
Vyc-wrn mkt:s;-Y ts,t4a� atlas,axocuted the Instrument E S REPRESEae
"MR Oi PlR90F &OA cmilry
Witness my hand and official seal. American rlatiorAal Bank
�•f
900 MATURE Or t•pT�A+r
ATTElfT1011 MOYallf:A p 1M rtt�fmiNOft rNw01d ODWW it prrIONAL R muY pr~1 try►aA.ni stud-vlso of ot,a wrtiR4ao Is unausleneea d•AU�stx.
THIS CERT)FICATtE This Or TypQ of Document Subord tiCt;7 A eet+e:nt
MUST 166 ATTACHED
TO THE DOCUMENT Number of Pages 9 Date of Document
DESCRIBED AT RIGHT, Slgner(,$) Other Titan Named Above Russ E. Katle, ggynpnq ` s ue-.
U It loll NATIONAL t1OTARV Assw La yq„.L+,�,06'0"t r, •P.O.A-7161•CWNW Pak CA WOL 7161
p CS Catsi Lr W=i AriavarYS WrM lav=THIMr0.
3-ldW0:o WGaI:l CE 101 Es . i a N►Jf
tr ZS RECOMaMED t13dZ',
PART= COSUL?W=Yg 7BM RA?OTR O RTNO E TE'Z M! $� l Bgp0EK L OT F='T1lRF3W tF SUBORDI' MTMI A
GQMMM!, ice Q
PACEL 13 - CQiTZ ulm' ... ...
70.00 GIPIG AT A POINT ON THE WORTH LINE OF COURT STREET
70.00 FEET WEST rAOX THE EAST LINE OF SAID LOT 4; THENCE NOR DISTANT
DEG. 1 ' 30• WEST ALONG THE EAST LINE OF TIM PiROPaRTY FORMERLY
OWNED BY R.C. lARe1S0H' A DISTANcz OP 116.00 FEET, X
TO THE NORTH LINE OF SAID LOT 4• MORE OR LLO8,
THE NORTH LINE OF SAID LOT 4; � 30�OE p'$G 36j 06 FEET AL0N6
THE NORTH LING OF COVRT STREETHZXC'
THENCE WESTERLY AZ,0N 0�NORTH
LZN$ OF COURT STREET, 35.76 FEET TO THE POINT OF BEGINNING.
ALSO THE WEST 10 FEET OF THZ PAST 34.24 FEET OF LOT 4, BLOCK 20
(AS RESERVED AND SET FORTH IN THAT CERTAIN DEED WHEREIN PIONEER
TITLE INSURI�fiCB AM TRUST COXPWm 23 NAMED G
NARBISON IS NAMED AS GRAblTEE, DATED
RECORDS OCTOBER SEPTEls8E ,1 19�8 RAND
RECORDS.. 13, 1928, IN 8009 427, PAGE 61, OFFICIAL
EXCEPT THAT PORTION INCLUDED IN PARCEL NOS 1 AND 2 HEREIx.
Yb8C1'L Ise. t ,
THAT PORTION Ole LOT 7, BLOCK 20, OF THE CITY OF SAM g
IN THE CITY OF SAN BERNARpINO, COUDIZ'Y OF SAN BED N BERNARDINO,
CALIFORNIA, AS PER PLAT RECORDED IN 8009 7 OP • STATE OF
RECORDS OF SAID COUNTY, DESCRIBED AS FOLZOWSs �S, PAGE 1,
COURT E YHE CENTER "NS OF A aRICX WALL ON THE NORTH LINE Or
COURT STREET, FAST 50.96 FEET FROX THE REST LINE OF SAID LOT 71
ARID BEING TUX SOUTHEAST COMER OF THE LAND DESCRIBED IN THE DEED
TO PIONEER TITLZ 'NEUR"CS AND TRUST COXPANy
18, 1954, IN 80070 9509, PAGE 91, OFFICIAL RECORDS; ACS aEAST
25 .58 FEET ALONG SAID NORTH LIKE OF COURT STREET TO THa SOOT HWEST
CORNER OF THE LAND DESCRIBED IN THE DEED TO no SUN COMPANY OF
SAN BERNARDINO, CALIFORNIA, RECORDED J ttJART 3,
2508, PAGE 73, OFFICIAL RECORDS, BEING ON THE TER IN BOOK
FIRE WALL; THENCE NORTH 88.00 FEET ALONG THE WEST LINE SAID
SUN COMPANY LAND An CENTER LIIPa Of SAID LIRE 1PALL TO TIDE SOUTH LINE 0! LAKp COliYBYED TO COHM AND RICE BY DEED RECORDED
AUGUST 13, 1908, IN SOON 4211 PAGz 274, OF DEEDS; THEIiCg WEST
25. 58 FEET ALONG Txz SOUTH LINZ OF SAID COHN AND RICK LAND TO THE
NOATH$AST CORNER OF THE LAND DESCRIBED IN
TITLE INSURANCE AND TRUST COQ, THE DEED TO PIONEER
9001 3509, PAGE 91, OFFICIAL CORDS;QTiDr NOVEMBER 18, 19541 Ili
ALONG TH8 EAST LIKE OF SAID PIONEER TITLE INSSURANCE 88AND0 TRUST
COMPANY LAND AND ALONG THE CENTER LITRE Or SAID BRICK WALL TO
POINT OF BEGINNING. THE
PkACI'T. Wn c.
ALL THAT PORTION Or LOTS 6 AM 7, BLOCx 20, 1l ORDII�TG TO 2lAp Op
THE CITY OF SAN BER.-,RDixo, IN THE CITY OF SAN SEANr►RDZKO, COUDITY
OF SAN 8E1�+tARD2I�0, STATE OF CALIro"IA, AS PER PLAT RECORDED IN
BO or xAps, pA68 z, RECORDS OF SAID COUNTY, DESCRIBED As
rOLL LLOH3e
PARCEy S: — C0tn-XtjUW ..
BEGINNING ON THE NORTH LIMB OF COURT STREET, 98 PENT EAST OF THE
WEST LINE Ot LOT 7, BLOCK 20, AT THE CENTER or THE SOUTH AND OF A
PARTY WALL, THE WEST 1/2 OF VHICH WALL IS on LAND OF JOIN AND
JOSEPH SHAPER; THENCE NORTH ALONG THE CENTER OF SAID PARTY WALL
AS FAR AS SAID WALL EXTENDS AND CONTINUING A DISTANCE OF 122 FEET
TO A POINT WHICH IS 143 FEET SOUTH OF THE NORTH LINE OF SAID
BLOCK 20; THENCE EAST 45 FEET; THENCE SOUTH 122 FEET TO COURT
STREET; THENCE WEST 45 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM A PORTION CONVEYED TO CAESAR COHMi AND SARA
RICH, AS PER DEED RECORDED IN BOOK 647, PAGE 313, OF DEEDS.
ALSO EXCEPTING THEREFROM[ THAT PORTION LYING WITHIN SAID LOT 6 .
PARCEL Nn. 6 s
THAT PORTION OF LOT 7, BLOCK 20, CITY OF SAN BERNARDINO, IN TM
OF SAN BERMZARDI�iO, COUNTY OF SAM BERMZARDINO, STATE OF
CALIFORXIA, AS PER PLAT RECORDED IN BOOK 7 OF WS, ,PAGE 1,
RECORDS OF SAID COUNTY, DESCAIBED AS FOZ.lrWSS
BEGINNING AT A POINT ON THE NORTH LIMB 0! COURT STREET AS NOW
LOCATED 197 PERT, MORE OR LESS, WEST OF THE INTERSECTION OF THE
NORTH LINE OF COURT STREET WITH THE WEST LINL OF 'D' STREET, IN
SAID CITY OF SAN BgXvj RDINO, SAID POINT OF BSGImNINC BEING
LOCATED IN THE CENTER OF TEE SOUTR END OF A &RICK WALL RNOWM AS
THE DIVIDING LINE BETWERN THE PROPERTY PORXBRLy OWNED BY JOSEPH
SHAPER AND THE LOT FORMERLY OWNED BY W.J. CURTIS, SAID CURTIS LOT
BEING NOW COVERED BY A C&XZNT BUILDING; THENCE NORTH ALONG THE
CENTER LINE OF SAID WALL AND ALONG THE PROLONGATION THEREOF, A
DISTANCE OF 88 FEET, MORE OR LESS, Tp Tag LOT FORMERLY OWNED BY
ROBERT H. TROXPSON AND CONVEYED TO CCU AND RICK By DEED RECORDED
AUGUST 31, 1908, IH BOCK 4211 PAGE 274, OF DEEDS; THENCE WEST 23
FEET, 5 INCHES, MORE OR LESS, TO A POINT IN THE SOUTH LINE OF
SAID COHN AND RICH LOT, WHICB WOULD BE INTERSECTED BY A XORTHER&Y
PROLONGATION OF THE CENTER LING OF THE FIRE WALL CONSTITUTING THE
WEST WALL OF THE EAST STORE ROOM or TUB BurLDING YOMSRLy MM40WN
AS SHAPER BLOCK; THENCE SOUTHERLY AND ALONG THS CENTER LIMB OF
SAID FIRE WA" ]AND ALONG THE NORTHERLY PROLONGATION TXZREOF, 88
FEET, MORE OR LESS, TO THS NORTH LING OF COURT STR.SET, AS NOW
LOCATED1 THENCZ EAST ALONG THE NORTH LINE OF COURT STREET• 23
FEET, 5 INCHES, MORE OR LESS, TO THE POI)iT 0! BSGINXIMG.
TOGETHER WITH ALL INTEREST WHICH THE SELLER NOW HAS IN THE PARTY
WALL OF THE WEST AND ON THE PREMISES ADJOINING ON THS WEST, A.S
CONVEYED TO SELLERS BY DEED EXECUTED BY PIONEER TITLE INSURANCE
COXPANY TO V.8. LEONARD AND RECORDED NOVEXBBR 13, 1924, IN BOOK
874, PAGE 257, OF DEEDS.
PARCEL-30,
THAT PORTION OF LOT 71 BLOCK 20, OF THE CITY OF SAN BSRNARDINO,
IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT
RECORDED IN BOOR 7 OF mapS, PAGE 1, RECORDS OF SAID COUNTY,
DESCRIBED AS FOLLOWSs
BEGINNING AT A POINT ON THE NORTH LINE OF COtTRT STREET,
27. 62 FEET FROX THE VEST LINE OF SAID LOT 7, SAID POINT BRIC EAST AT
THE SOUTHEAST CORnR OF A STEEL AND CONCRETE BUILDING CONSTRUCTED
FOR THE PIONEER TITLE INSURANCE i TRUST COMPANY; THENCE
CONTINUING $AST, 23.34 FEET TO TH8 CENTER LINE OF A BRICK VA";
THENCE NORTH 0 DEG. 06 ' 33• WEST, 88.06 FELT ALONG SAID CENTER
LINZ OF A BRICK WALLS THENCE NORTH 89 DEG. 54' 02' W3ST, 23.00
FEET TO SAID EAST WALL OF TAZ PZ0NltR TITLE INSURANCE - i TRUST
COMPANY BUILDINGS THENCE SOUTH 0 DEG. 06' 434 VEST, 88. 10 FBgT
ALONG SAID EAST WALL TO THE POINT OF BEGINNING.
TOGETHER WITH ALL OF THS RIGHT, TITLE AND INTEREST OF THE
GRANTOR IN AXD TO THAT PORTION OF COURT STREET LYING BASTERLY OF
THE SOUTHERLY PROLONGATION OF THE WEST LIFE OF THE HZREIN
DESCRIBED LAND, AND VESTUMT Or THS SOUTKERLT PROLONGATION' OF Tim
EAST LINE.
'*C C
IMPERIAL BANK • Fly
VN partner In MtfnrW e+ (a
PARTNERSHIP AUTHORIZATION REGARDING CREDIT
TO: IMPERIAL BANK Address; —W-20 saJth La C129yeaea Rlyd
> t OFFICE XMIG ocx3 Ca ZSWJ
TO i?IdUCC IMI'k:KJAL BANK (herein called "Bank,,) to grant credit andjur l:untithue fir1a+lcidl sc corn modaciens to or for the
partnership herelrtaftcr described, the undertiancd,jointly and severally, hereby repecterm. warrant and agrto:
A. I'HAT LDIMe LTD$
is is (cheese ono) C3 General Partncnhip ® Limited PartnershlQ• that the laatiun of I
ib ^ " r Cie, 9237A a principal Dlah:e of llusincis
S. THAT (choose one)Q Y StaWment of Partnership a Certltleatd and
by the Partnership and was rceorded in ® Agreement of Limited ParsntrrshiP has been e><autsd
on �� r• CuUnLy, California
r 9 , dg DWWmtnt Numher 2'_ , ;4 Nh1
C. THAT the general partner(a) are t,I lim mrwq ,
D. THAT the limited panner(s), ifany. are else '
gaSWCP==,% 6, ;n Sao 1146411-3:014 Pgazoltneings
E. THAT the above named persons are the sole uhhrnels of end the only ersens interested In
Said
If regtilroci. 4 Certificate of Ooins busineaa under a Fictitious Name hlta been fled ar
and Published as required by partnership and chat,
F. THAT
MASS (have) full authority,on behalf and In thu Flat[$*of said partnerships (NiTe(s] of Individualf bI 1
t. to•stain WIJASi fern sank b a nil fum and upon Nah terms as 1hgJs!.61 (they)Only deem advisable. and t•ebliptsavid garinershlo to oar
all sums,oMlatiens and intleblglnaa.Wien•nay arts•in eenneslien wren any trsnastlon autherlsed hereunder;
exiuuga nA4 deliver for suarAr se Or Indernn,tr avistmetFititeamifiY`yoga j ereladwa a ens i"Maneaeof euchh letters tree r^Jr dirges,and ce
molt;
]. To visa eraro drawn on or payable at or %%roYgll 11416► w lea «..rvtad by Yank at Mank's••Sion and strbsequgnsly so$spay bank amounts
sufficient to Cover any draft or drafts falling dug,tutathel elill the a%Lep{inee ee.nmlaa;o"and rnteresc:
s. To gnaw le.lu and esetute foreign elmhangg contracts with Yank:
S' TO tell to W 411eeunt M raelKOVnt till/ Yank ell♦ loll All 0Oy4. drafts, are de aeeap Y•lees.senVUts OF Other eomnheKlal NOer Owned
Of held by said pannefship.and to wriderss 4ntl/Yr Muera,•Ne pay-lien►aiha•eef,•n soeh tarot■as bank$way ropllret
e andsto obler,aaateea'@ par netrsnionjneany r""Rer IIn s•nnaeuun .call hi ibiWti.^�Jeyfvd+ir�aruw i d+e�6tnkN.aece deb it cewsiuty Partner vie
rellucat of SAO parwWra)h;e:
1. 1e execute 4114 deliver any and all notes. crafts. trade aeeepeanges,gYVlnues,aYpl;%O&U-.s and other aar.enients,a•^traeu genh,nefcl.l
Lme to renew,ex Lend of Me'l sty any ands ill wsfi.NlgaUML plafa 8006&Rd11ta.eeM hefew provided ter, and at Arty erne a+h0 >`f•m tLthe a
agreements sYthorized hmundari
S. TO direct allDosilleel of 0e Pr•ewea or a^y and all 1•ans tar♦bllsablehs sutneristo nerein,end w lc�ePL ff*M Of direst uelivery or aant
of any property of said pattnerbhlP at any Liras held a,bank;
Y. Te mane In say manna► wriatsetver saeorlty Intareabs In the AHRU of Said partnership IrWwdlhta Deedb of Truss an any real estate or leaasheio
Interest o+Wed by the partnerenlP,as seeYrky for all ihdsetedness and obligat►ons to bank new existing or hereafter arising,snit w e%@wwte
one deliver a 11afik suo:h lacur;ty agreerneRta,rust do"$-end other documents as Yank stall feewlre In order so serfeist any security inaerest
granted N said rartnerehie t•Desk hereunder:
10. To e:gwta aria Yeliear vi. h•a;verl and buannteas as may be reauired by bank;
111- To admit and•acttnowledge tane•a ohvneranlp and right tY Llrg pbsaeselen end d;sphx at of all doeunlents of side,sewtti tide,�l.lnh s,dernandt,
of Ytner ptepe/ty at Jnr tlnhe held by hank, at lu ewnla, relating ao or seeurins any "Olave11 arising under this autheri;aclon, and•f
all Muo.1s, J•ah.,TlehK,in4iro^hehtf bM•Mgr dtYNfdY radeusd 1e ahy at the undersigned,OF to 311y other person at the reauess el any of the
Yndeny;ned, un trvu or ether reeelpa, and in and to all of the Pr"eaedy of trig f0fvesai1n*,as fecurfty for Ne paymeRt of all eblipaainms
of vale partnership to bank, )ncitrding ataofh•y's fees and any Other is"enssa or lnfofue.nans of Banks Maths !n conneetien urlM any
eranaaatlen sYthoriaed hereunder.
Cr. THAT the authority herein conferred shall be considered retrwct)vu anti alt$ end all acts audhari.led hereunder perfofmhrd
prior to the date hereof are hereby approvdd and ratifie ; and thal. noshing herein contained shall ri eonsldeued ter affect die
herein conferred shall continue hereafter in full force andnaffec dim k'srelection until being notlte from all of the
rovaking Vhis authorization shall have been actually received by bank at Its ulrier described above.
Detcd: 19 9� .
Pte=, Genadwi I 8eartner
INYiY sett sti. i�r /C
Z♦ dElt'teCajl 12a111Zn1@r
L Saa tha6v 1/441
EXHIBIT 'A' ATTACHED TO THAT CERTAIN PARTNERSHIP BORROWING
AUTHORIZATION DATED JANUARY 7, 1992 EXECUTED BY HERITAGE OFFICE
BUILDING, LTD., A CALIFORNIA LIMITED PARTNERSHIP.
LDdrr D PARTNERS
Clifton L. Rucker
Luann J. Nrillo
Karl O. Bergheer, Trustee
The Bergheer CQmPanY Employee's Mosey Purchase Prnslon Plan
Mervyn Simchowitz
Gladys Babcock
Alfred B, t.ippitt
W=en E. Freeman
Russ E. Haile
Lorraine Hatle
BeN min J. Little, 7r.
Donald Powars
Darlene Powars
Edward K=
Nancy Keys
Raymond Larsen
Ruth Larsen
Donut Timmerman
Gale Timmerman
William Brock
Wilms Brode
Penelope P. Morrison
The Albert Dorman Family Trust
Priority Investors, Ltd.
1ilr►
IMPERIAL BANK //�'.1+ • p
Vu tanner in M �rcerl �'�
PARTNERSHIP AUTHORIZATION R
REGARDING CREDIT \`w/
TO: IMPERIAL. BA14K Addreti: 3ct>t
Ail!IPPMf
OFF ICI: _�raaltaafoocl e M tall
To uloltll.e IMPERIAL gal (herein talleol Bank") to will f.tcfJft anator continue tinarl iccom-odations LO nr for ale
Partnership hefeinaftar descriped, she undersigned,jointly and acvoil lly,hoYeby r iareaent,warrant and aRee:
A. T I f AT foorar JBfi=_
is a (choose one) ® General Partnership Limited Parincrahip; that the location of Its principal place of publncss
8 THAT (Owuss uric)® a Stalceillilnt or Partnership ❑ a Certificate and Agreement of Limited Partnership has been executed
by the Partnership and was recorded in San 8emmzdill
an 7 -• County, r.;allfornia
, IV 6-�— { At OCCurnent Number kg! SM4t
C. THAT the general partnal are
0- THAT the limtldd pa►lndr(a)r If xny, are
E. THAT e e nX le r acid 'interested d 1w and lt,at,ireUira a Ctlfl ate of OolBYaineaun a fictitious Nafa hs ben filled gild p`I ahe as required by�a.
F. THAT FWAYucinid 1P4a: oc By— pox gr
has(have) full authority,on behalf and In the name or said partnership; (Narnal or lndlvidualjsj)
I, To obtain credit from Dank b suds sum and open tech terms as hs/shoo (they L coati kem"wicable; and to ODIIWtf said partnership to par
all suites,tr011artbm and Inllfbeeinera arhlef trial ails•In connection lelts any ilanafstien aYth.rfsed henundoofl
2. To apCly to flank, for plc itavanee at letters of credit in fel of env person, firm,or organisation,as hffsne (they) may direct,and to
..acute and dalirer any aYarantee of indemnity agreement reduirfd by Bank felsWe N the 1►tuanoe Of 1+lirr Iftt.n Sf hied
le;
a. To llgn drafts drawn•n er Payable at Or wlrougn {lank to ae accepted P► Bans.at 111ank1 optlen and u{efs Yfn
ss.rtlalanl to bever any dlafl we dfartf ralllnd awe,together wits N.meeptanee COnlmielien!and lnternd d qy N repay p y Yank am•wnu
A. To entar Inflow and ea■gut.(soma"e■ensnp eentracsa will Bank; all
J. el sell y di dlr•unt of r red to wil wish Dank any and all note., drafty, trade acOepnanaq,eonttaats w other gam,"fro l reaper ee•nas
el held by fait PareneflgiP.and W v11QYtad drl/l/Vr xurarllee
Pevrnent Is1er.Yf,url sYCh tsfma as Yank may require-
e• T dooto M a eOntinYfn= owarantye in favor of Dank for•tile and all •1eJft IIIdr1Wd
reouest•f snot parts a yeah;p In aRy manner In.onnetV,an erittt Ysf YWIaeUulla wr it Ireltlaeltu the tbanktea{enaled n.softo%sJ at she
7. To faenule and .4 ll of e1+7 and all netef/ draft. tied• LeNptancea,jYafantlaa,applications and sooner ageementa, ceritractA,comlwrrofal
paler and evjde ten ■f imodifeJn.ed feWerasl Py �a ilk Inoolasing to IMS sfsnaactienoo htfeln Provided for,and at any tlme and 'so the el W
dme Be ranefr,extend x medley any snd all such•bligalie/K,NafsnN•end slhf•nfnte awthalsel fMf..nder;
e. To e:roac dlyo.ltlon of Inv l,l{n,aeJa Y(n.y died all 1o41110 at Vkllaalfuna 6Yt110rlaW heron,and to aceell frwn w Jfreat Vill7 by Hasa
{:f env Ml►eiffty ul solid pel Ill to lJliY at flow titnd held by Yank)
0. To grant to any manner senausisl aeaurley Interest ta in the aay.0 el aa;d PartnarshiP Including pee6r of Truat■n any real dlNt■w Ie.aeltvid
and dell er to�aynk swift ecunei i resomonty fat all ineebteJneaa and ublillatluns to bank nor eaistletr or hereafter alia;ng,and to execute
granted by slid"snaf►hip to Bank howfeunJetf uwel deeds aria etdlef ateumeo la at yank All reqube In order to perroofa any ascwity inferfvt
10. To swaiel.M delieof W,.h sefiaels and Wdtafsl,eea a usay be t-sil d by Baukf
t 1. TO eemst also.'ll at ill Yan Y•! Low, ship and rIA',ht 1'e Arse POtlaaJ.n and dispel Of all deawmenta or title,sfesrrltlas,stalmol dema^.la,
w Suggs p.ocuma .t ny ume hold 4y eau►, elf its enema, relaling W at flswurins any ubllgjil afibing wades Ulla dw Uluniadtiw.. ..,d.,r
all Suggs, a«Vn KY�I Vnj�J ^te♦altar�IIJ I.Yef dytVaallssi to dr1w,4`Ill s,riJetslane J.Vr to env tothar person at the fa,Vest Of env of the
vnderal da Y( {Irr rVf
Of acid partnership to Bank, ;n,lud;nd atW/nfw'a rap and dr,t ut11s1 goo.er .111941 ,as trvello► rut Jre Pdo lent of ell YVlla.tisrn>,
sranwcdadl a----- --hftfuMar. a use ter aferur6il l war fldn►y lialsta is {.f.nlres.tlon ..;do .Iny
G. TeIAT the authority neroln conferred Mall be considered retroactive and l and all acts authdrl=ed hereunder performed
prism W u1e deft: Itelft:uf Ito hereby approved and ratified; and that Meshing herein cterttalned shall be considered to arrest the
.auUlutity 11crtLuf are ur haaa l w►llen cd upon any ulher person or pfuS011 it being understood and agreed that the autllUrity
herein conferred shall eontl in full force snd effu:l at Bank's election until written notice (roes all of the unJ,11,11 l:d
revo11l1g this authoriaition shall hale Lovell as tuslly teacivgd by !tenet al Ala urflCU dusrtifiga fail
Dill Janwi l 7 y 9?
R,aylitu rd Fos fe G'gener-.t Painter Y ��a`+`��'�"j
. �!�' r e GaftlslCil ParCTLar
Xt; �A ,..__.
man Poet a General pies:teaeo r �•
A. Ism tnsv IA41
US MATERIALS WDF14a1 M AG
nis Hazardous Materials rndemairy Agreement is made as of Jan
Heritage Office Building, Ltd., a California limited �Y 7' 1�' by and among
�iP, having an address at 1731 'A"
Orange Tree Lane, Redlands, Ca. 92374 ('Borrower'), and Russ E. Hatle, having an
at 1731 'A' Orange Tree Large, Redlands, �, 92374 and Fox Bros, a address
having an address at 1731 'A` Orange Tree Lane, general PAP•
g Rolland:, Ca. 92374(collectively,jointly and
severally, 'Indemnitors'), and Imperial Bank, a California banking o
at 9920 South La Cienega Boulevard, Inglewood $ tporztion, having an office
the following facts: • o 90301 (Lender), with reference to
A. Borrower is the owner of the r"I property located in Los Angeles, California,
as more particularly described in Exhibit "A' attached hereto (said real property,
together with any real property hereafter encumbered by the lien of the Mortgage,
as defined brluw, being herein collectively called the Land; the Land, together
with all improvements now or hereafter located on the Land, being herein
collectively called the Property),
R. Under is prepared to make and Borrower will accept a loan in the amount of
$973,000.00 (the 'i„oan') secured by, among other things, a mortgage or deed
Of trust from Borrower to Lender which will encumber the property (said
mortgage or deed of trust, torcthcr with all amendments, modifications, and
supplements thereof being herein collectively called the 'Mortgage').
C. As a condition to making the Loan, Leader requires Borrower and lndemnitors
to provide certain indemnities concerning c=isdng and future asbestos,
Polychlorinated biphenyls and petroleum products, and any other hazardous or
toxic materials, wastes and substances which are defined, determined or identified
as such in any Federal, state or local laws, rules or regulations (whether now
existing or hereafter enacted or promulgated) or any judicial or administrative
int ,rpretation of such laws, rules or regulations (any such asbestos,
pulychlorinated biphenyls and petroleum products and any such other materials.
wastes and substances being herein collectively called 'Hazardous Materials").
D. To induce Lender to consummate the above described transaction and to make the
Loan to Borrower, Borrower and Indemnitors have agreed to enter into this
Agretx=t.
1
II�TI
NOW ALM P- "ORE, in consideradon cf the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Lender, Borrower
and Iademnitors hereby agree as follows:
1. Borrower and Indemnitors,jointly and severally, covenant and agree, at their sole
cost and expense, to indemnify, Protect and save Deader harmless against and
from any and all damages, losses, liabilities, obligations, penalties, claims,
litigation,demands, defenses,judgments,setts,proceedings, costs, disbursements
or expenses of any kind or of any nature whautiaever (including, without
limitation, attorneys' and experts' fces and disbursement;) which may at any time
be imposed upon, incurred by or asserted or awarded against Under and arising
from or out of(a) any Hazardous Materials on, in, under or affecting all or any
portion of the property or any surrounding areas, or (b) the embrrement of this
Agreement or the assertion by Borrower or any Indemnitor of any defense to its
Obligations h=under, whether any of such matters arise before or after
forxlosure of the Mortgage or other taking of dtle to all or any pOrdon of the
Property by Lender, including, without limitation, (i) the costs of removal of any
and all HuArdous Materials from all or any portion of the Property or any
surrounding areas, (ii) additional costs required to take Aftessary precautions to
protect against the release of Hazardous Materials on, in, under or affecting the
Property into the air, any body of warm, any other public domain or any
surrounding areas, and (iii) costs incurred to comply, in connection with all or
any portion of the Property or any surrounding areas, with all applicable laws,
orders,judgments and regulations with respect to Hazardous Materials, j pnfIC S
rights under this Agreement shall be in addition to all rights of Lender under the
Mortgage, the note secured by the Mortgage (the "Note) and any guuanty or
guaranties (whether of payment and/or performance) given to Leader in
connection with the Loan and under any other documents or inutruments
evidencing of securing the Loan (the Mortgage, the Note, any such guaranty or
guaranties and such other documents or instruments, as amended or modified
from time to time, being herein callthe 'Loan Documents'), and payments by
Borrower or any Indemaitor under this Agreement shall not reduce Borrower's
or any Indemnitor's obligations and liabilities under any of the Loan Docummts,
2. 'Me liability of Borrower and Indemnitors under this Agreement shall in no way
be limited or impaired by, and Borrower and each Indemnitor hereby consent to
and agree to be bound by, any amendment or modification of the provisions of
the Loam Documcau tv ur with Lender by Borrower or any Indemnitor or any
person who succeeds Borrower as owner of the Property. In addition, the
liability of Borrower and Indemnitors under this Agreement shall in no way be
limited or impaired by(a)any extensions of time for performance required by any
of tht Loan Documents, (b) any sale, assignment or foreclosure of the Note or
2
111A1
HERE
Mortgage or any sale or transfer of all or port of the mortgaged property, (c) any
exculpatcry provision in any of the Loan Documents limiting Lender's recourse
rse
to property encumbered by the Mortgage or to any other security, or limiting
Leader's rights to a deficiency judgment against Borrower, (d) the accuracy or
inaccuracy of the representations and waCranda made by Borrower under any of
the Loan Documents, (e) the release of Borrower or any other person from
pcaformanee or observance of any of the agreements, covenants, terms or
conditions contained in any of the Loan Documents by operation of law, Lender's
volunmaty act, or otherwise, (i) the release or substitution in whole or in part of
any security for the Note or (g) L.ender's failure to record the Mortgage or file
any UCC financing statements (or Lender's improper recording or filing of any
thereof) or to otherwise perfect, protect, secure or insure any security Interest or
lien given as security for the Note; and, in any such case, whether with or
without notice to Borrower or any Indemnitor and with or without consideration.
3. Borrower and each In =niter waive any right or cWm of right to cause a
warshalling of Borrower's asseu or w cause Lender to proceed against any of the
security for the Loan before proceeding under this Agreement against Borrower
or any Iadcmaitor or to proceed against Borrower and Indemnitors in any
particular order; Harrower and each indemnitor agree that any payments required
to be made hereunder shall become due on demand; Borrower and each
Indemnitor expressly waive and relinquish all rights and remedies (including any
rights yr subrogation) accorded by applicable law to indemnitors or guarantors.
4. No delay on Lender's part in exercising any right, power or privilege under any
of the L mn Documents shall operate as a waiver of any such privilege. power or
right.
3. Any one or more of Borrower or Indemnitors, or any other party liable upon or
in respect of this Agreement or the Loan, tray be released without affecting the
liability of any party not so released.
6. This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original. Said counterparts shall constitute but one and the
same instrument and shall be binding upon, and shall inure to the beneRt of, each
of the undersigned individually as fully and completely as if all had signed but
one instrument. 7be joint and several liability of Borrower and each of the
Indemnitars hereunder shall be unaffected by the failure of Borrower or any of
the Iademaitors to execute any or all of said counterparu.
3
7. All noU= hereunder shall be in writing and shall be deemed to have been
sufficiently given or served for all purposes when sent by registered or certified
mail, if to Borrower at its address stated on dte cover page hereof, if to
Indemnitors at their respective addresses stated on the cover page hereof, and if
to Lender, to the attention of its Real Estate Loan Administration, at its office at
9920 South La Cicnega Boulevard, Inglewood, California 90301 or other such
address of which a patty shall have notified the party giving such notice in
writing in accordance with the foregoing requirements.
8. No provision of this Agreement may be changed, waived, discharged or
terminated orally, by telephone or by any other mum except by an instrument
In writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.
9. Except as herein provided, this Agreement shall be binding upon and inure to the
benefit of Borrower, Indemnitors and Lender and their respective heirs, personal
representatives, successors and assigns. Notwithstanding the foregoing,
Borrower and Indemnitors, without the prior Wit= consorts of Lender in each
instance, may not assign, transfer or set over to another, in whole or in part, all
or any part of In or their benefits, rights, duties and obligations hereunder,
including, but not limited to, performance of and compliance with conditions
hereof.
10. This Agreement and the rights and obligations of the parties hereunder shall in
all respects be governed by, and construed and enforce in accordance with, the
laws of the State of California (without giving effect to principles of conflicts of
law). Borrower and Indemnitors hereby irrevocably submit to the nonexclusive
sitting jurisdiction of any California State or Federal Court sitting La the County
of Los Angeles (or any county in the State of California where any portion of the
Property is located) over any suit, action or proceeding arising out of or relating
to this Agreement, and Borrower and Indemnitort hereby agree and consent that,
in addition to any methods of service of process provided for under applicable
law, all service of process in any such suit, action or proceeding in any California
State or Federal court sitting in the County of Los Angeles (or such other county
in the State of California) may be made by certified or registered mail, return
receipt requested, directed to Borrower or Indemaitors, as the case may be, at
their respective addrrssrs indicated on the corer page hereof, and service so made
shall be complete five (S) days after the same shall have been so mailed.
4
I'T
i
'N W' TTESS WHERZOF, Lender, Borrower and Indemnitors have caused this Agreement to
be cxecutcd as of the date first written above.
.1,endcrl
94PFI UAL BANK,
a California banking corporation
By:
Ubert 8. fdtcbell, Jr., Senior Vice Presidant
'Borrower'
HERITAGE OFFICE BUII DING, LTD.,
a CalUo ' ip
By:
Russ L atle, general partner
By: Foal Bros., a general partnership,
general partner
Raymond Foz, Ctneral partner'
Bye t ,. %.7•�c _
Sam Fox, General Partner
"Indemnitors•
Fox Bras., a general partnership
Raymond Fox, general partner
By: XL-�.•—
Sam Fox, ral partaez.-
C--
--
Russ E. Hatle, Individually
S
E3CMIT •A4
ALL THOSE PORTIONS Of LOTS 4 AND 7, BLOCS 20, OF THE CITY OF SAN
BERNUDIKO, IN THE CZTY OF SAN BERNARDINO, COUNTY OF
BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IS SAN
E 1
OF RAPS, PAGE 10 RECORDS OF SAID COUNTY, DESCRIBED 800 0?. OWS8
BEGINNING AT A POINT ON THE NORTH LINE OF COURT STREET IN SAID
SLOCR 200 WHICH IS INTERSECTED BY THE LINE BETWEEN LOTS 4 AND 7
IN SAID BLOCK; THENCE VEST 34.24 FEET ALONG THS 1i0ATR LING OF
COURT STREET TO TH8 SOUTHEAST CORNEA OF TH8 LAND CONVEYED SY
PIOKYBA TITLE INSURANCE AND TRUST COMPANY TO R.C. XARSISON BY
DEED RECORDED OCTOBER 130 1928, IN BaOK 427, PAGE 61, OFFICIAL
RECORDS; THENCE ALONG THE EAST LINT OF THE LAND SO CONVEY80 BY
PIONEER TITLE INSURANCE AND TRUST COMXPANY, NORTH 0 DEC. 07 ' 30•
EAST, 117 . 12 FEET, MORE OR LESS, TO THE NORTH LIKE OF SAID LOT 4;
THENCE EAST ALONG THE FORTH OF SAID LOT 4 TO Z`H8 1VORTHYEST CORNER
OF LOT 7, IN BLOCK 20; T3{B�tCH SOUTH 1.07 FEET ALONG THE WEST LING
OF SAID LOT 7; THENCE EAST 21.10 FEET, PARALLEL WITH THS NORTH
LINE OF LOT 7 TO THE NORTHEAST CORKER OF THAT CERTAIN PARCEL OF
LAND COWETID By JOSEPH COHN AND SARA RICH TO PIONEER TITLE
INSURANCE AND TRUST CONPAMT BY DEED RECORDED AUGUST 13, _ 1927, IN
BOOR 262, PAGE 233, OFFICIAL RECORDS; THENCE SOUTH 0 DEG. 06 ' 430
WZST, 116. 05 .FEET ALONG THE FAST LINZ OP TIM EAST WALL OF THE TWO
STORY STEEL AND CONCRETE RUILDINQ CONSTRUCTED BY PIONEER TITLE
INSURANCE A" TRUST COMPANY TO THE NORTH LINE OF COURT STREET;
THENCE WEST ALONG TIM NORTH LIKE OF COURT STREST, 27.62 FEET TO
THE POINT OF BEGINNING.
THE EAST 32.00 FEET OF LOT 5, BLOCK 20, Or Txz CITY Op SAN
BERNARDINO, IX TI$ CITY OF SAN BZpJ(kADINO, COUNTY OF SAM
BEPJIMWZNO, STATE OF CALIFORNIA, AS PSR PLAT RECORDED IN BOOK 7
OF !LAPS, PAGE It RECORDS OF SAID COUNTY.
EXCEPTING TIZREPRQX THAT PORTION DESCRIBED AS FOLLOWS&
BEG"N'"d AT TB! AORTHSAST COAMR OF SAID LOT S; TKSNCS WEST 2. 6S
FEET ALONG THE NORTHERLY LINE OF SAID LOT; T88NCE SOUTH 0 DEC.
00 ' 16 ' EAST, 118. 90 FEET; TFMNCE FAST 0.80 FEET; THENCE SOUTH 0
DEG. 07 ' 30' *ZAST, 31.30 FEET TO A POINT CK THE SOUTH LINE OF
SAID LOT S, WRICR IS WESTER2.Y 2.10 PERT FROM THE SOUTH MT COMA
OF SAID LOT St THENCI EAST 2.10 FEET ALONG THE SOUTH LINE OF SAID
LOT S TO TII SOU' KZJL.ST CORNER Or SAID LOT 5; VMNCR NORTH ALONG
THE EAST LINZ OF SAID LOT S TO Tax POINT OF SSGINIilya b
PAR-"- _ N0. 3 t
AN BASEMENT FOR PEDESTRIAN PASSAGE TO aE USED IN COMMON WITH
OTHERS MR TXZ V85T 23.00 FEET OF THR EAST 45.50 FEET OF THE
NORTH 119.27 FEET OF LOT S, AHD OVER THE WEST 16.00 FEET OF THE
EAST 42.50 PEST OF THAT PORTION OF LOT S LYIPG SOU=RLY OF SAID
NORTH 119. 27 FEET, ALL IN BLOCK 20 OF THS CITY OF SAx BERHAUINO,
iN THE CITY OF SAN BERNARDINO, IN THE COVI= OF SAN BEAD MWINO, C
STATE OZ COUNTY;CALITOR�IIA, AS PER PLAT RECORDED IN 500E 7 OF MAPS, PAGE
It RECORDS Or SAID AND OVER THS EAST 10.00 FEET of THAT
PORTION OF SAID BLOCK 20 DESCRIBED AS rOLLOVSs �J
PAR= 43 - Cotyrni m......
COMMENCING AT A POINT ON THg NORTH LINE OF COURT STR$$T, DISTANT
70.06 FEET WEST FROX THE EAST LINE OF SAID LOT 4• THENCE NORTH 0
DEC. 14 30' WEST ALONG TXZ EAST LINE OF TEZ PROPERTY FORXERLY
OWN'20 BY R.C. H ARaISON, A DISTANCE OF 116.00 FEET, XOR$ OR LESS,
TO THE NORTH LINE OF SAID LOT 4; THENCE EASTERLY 36 .06 FEET ALONG
THE NORTH LIME OP SAID LOT 4; THENCE SOUTH 0 DEG. 7 - 30' WEST TO
THE NORTH LINE OF COURT STREET; TH'NCE VESTBALY ALONG Tim NORTH
LIN3 Of COURT STREET, 35.76 FEET TO THE POINT OF BEGINNING.
ALSO TXZ WEST 10 FEET OF THL EAST 34.24 FEET OF LOT 4, BLOCK 20
(AS RESERVED AND SET FORTH IN T)AAT CERTAIN DEED WHEREIN PIONEER
TITLE INSMWCZ AND TRUST COMPANY IS BOXED GRANTOR AND R.C.
HARBISON IS NAMED As GRANTEE, DATED SEPTEMm 25, 1928 AND
RECORDED OCTOBER 13, 1918, Ili BOOR 427, PAGE 610 OIIPICIAL
RECORDS.
EXCEPT THAT PORTION INCLUDED Im PARCEL NOS 1 AND 2 HEREIN.
PARGQ—XQ, -4
THAT PORTION OF LOT 7, BLOCZ 20, OF THE CITY OF SAN BgRW1RDIN0,
IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERli7�ADINO, STATE OF
CALIFORNIA, AS PER PLAT RECORDED IN BOOK 7 OF X"S, PAGE 1,
RECORDS OF SAID COUNTY, DESCRIBED AS FOLLOVSs
BEGINNING IN THE CENTER LIMB OF A BRICK iiALL ON 'fig NORTH LINE OF
COURT STREET, BAST 50.96 FEET FROM THR VEST LINN Ot SAID LOT 7,
AND BEING THI SOUTHEAST CORNEA OF THZ LAND DESCRIBED Ili THE DEED
TO PIONEER TITLX INSUMACE AND TRUST COXPANY RECORDED NOYEXBLR
18, 19541 IN SOOT 35090 PACs 911' OFFICIAL RECORDS; TIMNCZ EAST
25 .58 FEET ALONG SAID NORTH LINZ OF COURT STREET TO THS SOVMZST
CORNER OF THE LAND DESCRIBED IN THE DEED TO THE SUIT COIIpANY OF
SAN 39"ARDINO, CALIFORXIA, RECORDED JANWT 3, 1950, IN EOOZ
25081 PAGE 730 OPFICIAL RECORDS. BBINC ON THE CENTER LINE OF A
rZRZ VALL; TEZXCZ NORTH 88.00 FEET ALONG TER WEST LINE OF SAID
SUN COXPA;'T LAND A= CENTER LINE OF SAID FIRE WALL TO TII SOUTH
LING OF THE LARD CONVEY80 TO CORN AND RICH BY DIED REC0"ZD
AUGUST 13, 1908, IN BOG 421, PAGE 274, OF DEEDS; THENC$ WEST
23.38 FEET ALONG TH! SOUTH LIN= OF SAID CORN AND RICH LAM TO THE
NORTHEAST COPJMA OF THE Z"D DESCRIBED IN THE DEED TO PIONEER
TITLE INSURANC$ AND TRUST CORPANY, RECORDED NOVEXBER 18, 19541 IN
BOOR 3S09, PAaX 910 OFFICIAL RECORDS, MMUCE SOUTH 88.00 FEET
ALONG THE EAST LING OF SAID PIONEER TITLE INSURANCE AND TRUST
Co"ANY LAND MW ALONG THE CENTER LINE OF SAID BRICK WALL TO THE
POINT OF DEGINNING.
ALL THAT PORTION OF LOTS 6 AND 71 BLOCS 20, ACCORDING TO MAP OF
THE CITY OF SAN BERNARDINO, in THE CITY OF SAN BZRXARDZNO, COUNTY
OF SAN D3 R&RDINO, STATE OF CALIFORNIA, AS PEA PLAT RECORDED IN
BOOK 7 OF MA.PQ, PAGE 11 RECORDS OF SAID COUN-'PY, DESCRIBEO AS��
FOLLOVSs
PARCEL 5: - C1ZtrIRtJFa ......
BEGINNING ON THE NORTH LINE OF COURT STREET, 98 FEET EAST OF THE
WEST LIFE OF LOT 71 BLOCK 20, AT THS CENTER OF THE SOUTH AND OF A
PARTY HALL, THE WEST 1/2 OF xxICK WALL IS ox LAND OF JoHW AND
JOSEPH SHAFER; THENCE NORTH ALONG TH.E CENTER OF SAID PARTY WALL
AS PAR AS SAID WALL EXTENDS AIM CONTINUING A DISTANCE OF 122 FEET
TO A POINT WHICH IS 143 FEET SOUTH OF THE NORTH LINE OF SAID
BLOCK 20; THZNCB EAST 45 FEET; THENCE SOUTH 121 FEET TO COURT
STREET; THENCE NEST 45 FEET TO THE POINT OF 310INNING.
EXCEPTING THEREFROX A PORTION CONVSYSO TO CASSAR COHN AND SARA
RICH, AS PER DEED RECORDED IM BOOM, 6471 PAGE 3131 OF OSBDS.
ALSO EXCEPTING THEREFROM THAT PORTION LYING WITHIN SAID LOT 6 .
P. RCZL ge. 91
THAT PORTION OF LOT 7, BLACK 201 CITY OF SAN BERNARDINO, IN THE
CITY OF SAN BERNARDINO, COUNTY OF SAX BERIQARDINov STATE OP
CALIFORNIA/ AS PER PLAT RECORDED IN BOOX 7 OF XAPS1_ PAGE 11
RECORDS OF SAID COU M v DESCRIBED AS TOLLOYSi
BEGINNING AT A POINT ON THE NORTH LINE OF COURT STREET AS NOW
LOCATED 197 FEET, MORE OR LESS/ WEST OF TIM INTERSECTION OF THE
NORTH LINE OF COURT STREET WITH THS WEST LINT OF •D- STREET/ IN
SAID CITY OF SAM BSRUARDINO, SAID POINT OF SZOIXMING 82ING
LOCATED IN THE CENTER OF THE SOUTH END or A aRICR WALL KNOWN AS
THE DIVIDING LING BETWEEP THR PROPERTY FORXERLY OWED BY JOSEPH
SHAPER AND THE LOT FORIUIRLT CMD BY Y.J. CURTIS/ SAID CURTIS LOT
BEING NOV COVERED BY A CRXE?IT BUILDINGS TSBNCE NORTH ALONG THE
CENTER LINE OF SAID WALL AND ALONG THE PROLONGATION TH2REOF/ A
DISTAKCR OF 68 FEXT, HORS OR LESS, TO THS LOT FORXSALY OWNED BY
ROBERT H. THOXPSON AND CONVEY 30 TO COHN ACID RICK BY DEED RECORDED
AUGUST 311 19081 IN 8001 421, PAGE 274, OF DEEDS; THtNC3 WEST 23
FEET, S INCHES/ MORE OR LESS, TO A POINT IN TO SOUTH LIKE OF
SAID COHN AND RICH LOT/ WRICR WOULD Ss ZXTERSECTED BT A NORMALT
PROLONGATION OF TEE CRUTER LINE OF THE FIRE WALL CONSTITUTING TWO;
VZST WALL OF Tit EAST STOR3 ACO= or THZ 37ILDImG FORXERLT XNOVN
AS SHAFER BLOCK; THENCE SOUTMMY ALPO ALONG THS CENTER LINE OF
SAID FIR2 WAIL AND ALONG THR NORTHERLY PRO14UGATION THEREOF, 88
FEET, XORA OR LESS, TO THE NORTH LINZ OF COURT STREET, AS NOW
LOCATED! THENCE EAST ALONG THE NORTH LINE OF COURT STREET, 23
FEET, S INCHES, !TORE OR LESS, TO THE POINT OF BEGINNING.
TOGETHER WITH ALL INTEREST WHICH THE SELLER NOW HAS IN THE PARTY
MALL OF THE WEST AN'D ON THE PRIMISIS ADJOINING ON THR WiEST, AS
CONVZTED TO SELLERS IT DEED EXECUTED BY PIONEER TITLE INSURANCE
COMPANY TO Y.E. LRONARD AND RECORDED NOVEXBSR 131 19241 IN BOOK
8741 PAGS 2571 Of 08208.
PARCTL NO, 7:
THAT PORTION OF LOT 71 BLOM 20, OF TIM CITY OF SAN 88RNMMIXor
IN THS COUM OF SAx BERNARDINO, STATE OP CALIFORMIAO AS PER FLAT
RECORDED IN BOOS 7 OF x%pS0 PAGE 11 RECORDS OF SAID COUNTT,
DESCRIBED AS FOLLOWSg
BEGINNING AT A POINT Ox Txg NORTH LINE OP COURT STREET, EAST
27 . 62 FEET FROX THS WEST LINT OF SAID LOT 71 SAID POINT BEING AT
THE SOUTRBAST CORNER OF A STEEL KND CONCRETE BUILDING CONSTRUCTED
FOR THE PIONEER TITLE INSURANC= i TRUST COMpam; TjsMXCE
CONTINUING FAST, 23.34 FEET TO THE CENTER LINE OF A RRICX WALyI
THENCE NORTH 0 DEG. 06 ' 330 W9ST, 86.06 FEET ALONG SAID CEXTER
LINE OF A BRICK, WALL; THZ36CZ NORTH 89 DEG, 34 ' 02• WESTO 23.00
rZET TO SAID EAST WALL. OF THX PIONSZR TITLS ZxSURAMCS 6 TRUST
COMPANY BUILDING; THENCE SO= 0 DEG. 06 ' 43' WEST, 88.10 PUT
ALONG SAID EAST WALL TO TH8 POINT OF BEGIIDtiVG.
TOGETHER WITH ALL OF TH$ RIGHT, T:TL= AND INTEREST OF THE
GRANTOR IN AND TO THAT PORTIOX OF COURT STIesaT LTXMQ tASTZRLT OF
THE SOUMRLY PROLONGATION OF THE WEST LixE OF TIM KLRE=N
DESCRIBED LANDO AND WESTERLY OF THS SOUTHBRLT PROLONGATION OF THE
EAS? LINE.
tA
f
j�C�ME
MODIFICATION ACIREF Yir
STATE OF CALTFORNTA
COUNTY OF SAN BERNARDINO
THTS MODIFICATION AGREEMENT Ls entered into as of 1993, by and
among IMPERIAL BANK a California Banking Corporation ("Lender"), whose address Is 9920
South La Cienega Blvd., Inglewood, CA 90301, and HERITAGE OFFICE BUILDING TD, a
California Limited Partnership ('Borrower') whose address is 1731-A Orange Tree Lane,
Redlands,California 92,974;
RECITALS
A
A. Lender and Borrower entered into that Loan Agreement, dated February 1, 1993
between Lender and Borrower, pursuant to which Lender has made a loan (the "Loan") to
Borrower in the principal amount of Nine Hundred Seventy Five Thousand Dollars ($975,000.00),
the Loan being evidenced by an original Promissory Note(the"Note") dated December 15, 1981 in
the principal amount of Nine Hundred Seventy-five Thousand Dollars (5975,000.00) and a
Restated Note dated March 30, 1993 in the principal amount of Eight Hundred Sixty-three
Thousand Nine Hundred, Thirty-nine Dollars and fifteen cents ($863,939.15), executed by
Borrower bearing interest and being payable as therein provided and being fully due and payable
December 15.2001.
B. The indebtedness evidenced by the Note is secured by that Deed of Trust (With
Assignment of Rents)dated and recorded December 18, 1981,as Instrument # 81-273244 at page
Official Records of San Bernardino County describing therein the Property (the
"Property").
_ C. Lender and Borrower have agreed to add an annual fee, payable by Borrower to
Lender,equal to forty-five percent(45 0/c)of Prime Rate as defined in the Note.
AGREEMENT!
1. NOW THEREFORE, In addition to all other terms and conditions of the Note as
originally set fonh and as re-executed, Borrower hereby agrees to pay Lender, as a fee over and
above the interest and fees set forth in the Note, an amount equal to forty-five percent (4S%) of
Prime Rate as defined in the Note. Such additional amount shall be payable in monthly
installments on the same day of each calendar month as payments of interest and principal are
duc on the Notc.
2. If any payment of principal, interest or fee due under the Note is not made within
ten(10)c,-,s to the date when due,a late charge of five perc,..,(S%)of the past-due amount may
be charged by Lender for the purpose of defraying the expenses incident to handling such
delinquent payments, and Borrower and Lender agree that (a) such late charge represents (i) a
reasonable sum considering all of the circumstance existing on the date of this Agreement and(ii)
a fair and reasonable estimate of the cost that will be sustained by Lender due to the failure of
Borrower to make timely payments, and (b) proof of actual damages would be costly or
inconvenient. Any late charges shall be paid without prejudice to the rights of Lender to collect
any other amounts provided to be paid or to declare a default under this Note or under any other
of the Lunn instruments or from exercising any other of the rights and remedies of Lender.
3. In conjunction with the re-execution and extension of the Note and the other Loan
Instruments, Borrower hereby agrees that such extension shall In no manner affect or impair the
Note or the liens and security interests and Individual guarantees securing same,and that said
liens and security interests and individual guarantees shall not in any manner be waived, the
purpose to this Agreement being simply to extend the maturity date of the Note, and Borrower
further agrees that all terms and provisions of the Note, the Deed of Trust, and other Loan
Instruments shall be and remain in hill force and effect as therein written, except as otherwise
expressly provided herein.
4. Burrower hereby covenants and warrants that the Loan Instruments are not in
default;that there are no defenses,counterclaims or offsets to such Loan Instruments; and that all
of the provisions of the Loan Instruments are In full force and effect.
S. Borrower agrees to pay all cost incurred in connection with the execution and
consummation of this Agreement, including but not limited to, all recording costs, the premium
for such endorsement to the ALTA Loan Policy insuring the validity and first lien priority of the
Deed of Trust as may be required by Lender with respect to this Agreement, subject only to such
exceptions as may be approved by Lender, and the reasonable fees and actual expenses of
Lender's counsel.
d. All agreements between Borrower and Lender, whether now existing or hereafter
arising and whether written or oral, are hereby expressly limited so that in no contingency,
whether by reason of acceleration of the maturity of the Note or otherwise, shall the interest
contracted for, charged, received paid or agreed to be paid to the holder of the Note exceed the
maximum amount permissible under applicable law. If, from any circumstance whatsoever,
interest would otherwise be payable to the holder of the Note in excess of the maximum lawful
amount, the interest payable to the holder of the Note shall be reduced to the maximum amount
permitted by applicable law; and if from any circumstance the holder of the Note shall ever
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receive anything of value deemed Interest by applicable law, an amount equal to any excessive
interest 1 be applied to the reduction of the principal am it owing under the Note,and not to
the payment of interest, or If such excessive interest exceeds such unpaid balance of principal of
the Note,such excess shall be refunded to Borrower. All interest paid or agreed to be paid to the
holder of the Note shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread throughout the full term of the Note, as heretofore extended (including the
period of any further renewal or extension thereof) so that the interest on the Note shall not
exceed the maximum amount permitted by applicable law. This paragraph shall control all
agrceuteuts between Borrower and the holder of the Note.
S. As heretofore amended, all of the terms, provisions and conditions of the Loan
Instruments are and shall remain in full force and effect and are incorporated herein by reference.
EXECUTED as the day and year first above recited.
LENDER: IMPERIAL BANK,
A California Banking Corporation
9920 South La Cienega Boulevard
Inglewood,CA 90301
BY:
Its:
BORROWER: HERITAGE OFFICE BUILDING,UrD.
A California Limited Partnership
BY:
uss h.Halle',—G—en—e—r—a7ra—rtner
BY: FOX BROTHERS,A GENERAI,PARTNERSHIP
BY:
ay-on ox,General Partne r
PROMISSORY NOTE SECURED BY PERSONAL GUARANTEE
$25,000.00 Place: Redevelopment Agency
201 North "E" Street
Third Floor
San Bernardino, CA 92401
Date: , 1993
FOR VALUE RECEIVED, the undersigned promises to pay to the
Redevelopment Agency of the City of San Bernardino (the "Agency") or its successors,
the sum of Twenty Five Thousand Dollars ($25,000.00), as follows:
1. The Agency shall be paid the principal balance at such time as the
Participant receives permanent financing for the building (the "Project") as such terms
are further defined in the Owner Participation Agreement to be executed by the Agency
and the undersigned on behalf of the Participant.
2. The proceeds of this loan may only be used to pay the extension fee
required by Imperial Bank to permit implementation of permanent financing for the
Project. If the undersigned fails to secure permanent financing, the principal balance
hereof shall be due and payable immediately upon demand by the Agency.
3. A failure to pay any sum provided for in this Note when due or a
material breach of this Note, the Agreement or the Personal Guarantee shall constitute
a breach hereof and shall entitle the Agency to declare all sums due hereunder
immediately due and payable and to pursue all remedies available under this Note, the
Agreement or the Personal Guarantee.
All payments due under this Note shall be made in lawful money of the United
States in the name of the Agency at either or at the
principal office of the Agency, 201 North "E" Street, City Hall Annex, San Bernardino,
CA 92401-1507, or at such other place as may from time to time be designated by the
Agency in writing.
The undersigned reserves the right to prepay at any time all or any part of the
principal amount of this Note without the payment of penalties or premiums. All
payments on this Note shall be applied first to the principal due on the Note, and the
remaining balance shall be applied to late charges, if any.
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�r
�c
San Bernardino/Heritage
Final Resolution
60289/29550-DAUla54
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2 EXHIBIT C
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4 Purchase Agreement
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DA'ID1354
NOTE PURCHASE A REEMENT
THIS NOTE PURCHASE AGREEMENT ("Agreement) is entered into on February
1, 1993, by and between INVESTMENT CONSULTANTS CORPORATION, a California
corporation ("Buyer") and IMPERIAL BANK, a California banking corporation ("Seller"}.
RECITALS
A. Prior to the date hereof, Seller made a loan ("Loan") to Heritage Office Building,
Ltd., a California limited partnership ("Borrower") in the original principal sum of
$975,000.00. The Loan Is evidenced by that certain promissory note ("Note") dated
December 15, 1981, in the original principal sum of $975,000.00, executed by Borrower
in favor of Seller. The Note is secured by, among other things, that certain deed of trust
("Deed of Trust) dated December 15, 1981, executed by Borrower in favor of Seller, and
recorded December 18, 1981 as Instrument No. 81-273244 in the Official Records of San
Bernardino County, California.
B. Borrower Is currently in default under the Note and the Deed of Trust, and all
outstanding principal, together with accrued but unpaid interest and other _charges
thereon are currently due and payable in full.
C. Prior to the date hereof, Seller caused a Notice of Default ("Notice of Default)
to be recorded as Instrument No. 92-522430 in the Official Records of San Bernardino
County,_California with respect to the Deed of Trust. The real property encumbered by
the Deed of Trust is currently scheduled to be sold on February 10, 1993, or such other
date as Buyer and Seller have mutually agreed upon, pursuant to a non judicial
foreclosure sale.
D. Buyer and Seller desire to enter into this Agreement for the purposes of selling
the Note and Deed of Trust to Buyer.
OPERATIVE PROVISIONS
NOW,THEREFORE,FOR VALUABLE CONSIDERATION,the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
1. Purchase of Note and Deed of Trust. Provided that Buyer and Seller satisfy
each of the conditions and perform each of their respective obligations contained in this
Agreement, Seller hereby sells, assigns and transfers to Buyer all of its right, title and
interest in and to the Note and Deed of Trust upon the terms and conditions set forth
below.
2. Purchase Price. The purchase price ("Purchase Price") for the Note and
Deed of Trust shall be Six Hundred Twenty-Five Thousand and No/100 Dollars
($625,000.00). Buyer shall pay the Purchase Price to Seller, in immediately available
funds, as follows:
a) Cash Down Payment. Buyer shall deposit, with the Escrow Holder
(as hereinafter defined), the Down Payment (as hereinafter defined), at the
time and in the manner set forth in Section 3.1 below;
b) Additional Deposit. Buyer shall deposit with the Escrow Holder, the
Additional Deposit (as hereinafter defined), at the time and in the manner
set forth in Section 3.3.2 below; and
c) Balance of Purchase Price. On or before the Closing Date, Buyer
shall deposit with the Escrow Holder, in cash, the balance of the Purchase
Price.
3. Escrow.
3.1 Opening of Escrow, Within five (5) business days after Buyer and Seller
have each executed this Agreement,whether below or In identical counterpart, Seiler shall
cause to be deposited with Seller's Escrow Department ("Escrow Holder"), a cash down
payment ("Down Payment") equal to Twenty.-Five Thousand and No/100 Dollars
($25,000.00), together with one (1) executed copy of this Agreement. Buyer and Seller
hereby expressly authorize and instruct Escrow Holder to open an escrow (the"Escrow'],
and to Transact the purchase and sale of the Note and Deed of Trust in accordance with
the terms and provisions of this Agreement. Escrow shall be deemed open upon Escrow
Holder's receipt of the Down Payment and the executed copy of the Agreement. The fully
executed copy of this Agreement (whether executed jointly or in identical counterpart),
shall constitute the joint escrow Instructions ("Escrow Instructionsl of the parties hereto.
3.2 Title Insurance and Status of Title. Escrow Holder shall release the
Purchase Price to Seller when Escrow Holder has obtained from First American Title
Insurance Company ("TRIe Company"), and is prepared to Issue a CLTA 104.9 Title
Insurance Endorsement ("Endorsement") to that certain Califomia Land Title Association
(CLTA) Lender's Policy of True Insurance (Title Insurance Policy") issued by the Title
Company, insuring the Deed of Trust, with liability limited to the Purchase Price showing
title vested in Buyer, SUBJECT ONLY TO:
3.2.1 General Tale Exceptions of Record] (i) Covenants,conditions, restrictions,
reservations, easements and rights-of-way of record as may be approved by Buyer; (ii)
oil, gas, water and mineral exceptions and reservations of record as may be approved
by Buyer; and (Iii) general and special real property taxes and assessments for the
current fiscal year, pro-rated through Close of Escrow;
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3.2.2 Standard Title Exclusions. The standard exclusions of Escrow Holder; and
3.2.3 Buyer Approved Exceptions. Such other exceptions, if any, approved in
writing by Buyer.
3.3 Additional Deposits into Escrow.
3.3.1 Note and Assignment of Deed of Trust. Prior to Close of Escrow, Seller
shall deposit with Escrow Holder: (i) the Note, endorsed by Seller to Buyer; and (ii) an
executed and notarized assignment ("Assignment') assigning to Buyer all of Seller's right,
title and Interest in and to the Deed of Trust. Escrow Holder shall cause the Assignment
to be recorded upon Close of Escrow when Buyer has performed all of its obligations
and duties under this Agreement.
3.3.2 Additional Deposit. Provided that each of the conditions set forth in
Sections 5(c) through 5(h), inclusive, below shall have been satisfied on or before
February 26, 1993 {"Additional Deposit Deadline`, Buyer shall deposit with the Escrow
Holder, in cash, an additional deposit ("Additional Deposlt") In the sum of Twenty-Five
Thousand and No/100 Dollars ($25,000.00).
3.3.4 Balance of Purchase Price. On or before the Closing Date, Buyer shall
deposit with the Escrow Holder, In cash, the balance of the Purchase Price.
3.3.5 Condition of Non-Refundability, Upon the satisfaction of each of the
conditions set forth In Sections 5(a) through 5(h), inclusive, below on or before the
Additional Deposit Deadline, the Down Payment and the Additional Deposit shall be
deemed non-refundable to Buyer, and In the event the Escrow fails to close on or before
the Closing Date (as hereinafter defined) through no fault of Seller, then in such event,
the Down Payment and the Additional Deposit shall be paid to Seller as liquidated
damages in the manner set forth In Section 3.10 below. In the event any of the conditions
set forth in Sections 5(a) through 5(h), inclusive, below shall fail to be satisfied or waived
on or before the Additional Deposit Deadline, the Down Payment and the Additional
Deposit shall be deemed refundable to Buyer in the event the Escrow fails to close in the
manner set forth herein.
3.4 Buyer's CoM_and Fees. Buyer hereby instructs Escrow Holder to pay and
charge to Buyer's account the following costs, fees, charges and expenses:
3.4.1 Mer's Escrow Fees. One half(1/2) of all fees charged by Escrow Holder
In conjunction with this transaction; and
3.4.2 Buyer's Endorsement Premiums. The premium for the Endorsement; and
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3.4.3 Other Customary Buyer's Fees. Any other closing costs and fees not
described in Section 3.4 or Section 3.5 which are customarily paid by Buyer;
(collectively"Buyer's Costs and Fees'l. Buyer shall within three (3) days following written
request by Escrow Holder, deposit such funds into Escrow ("Buyer's Cost Deposit) as
are reasonably necessary in order to facilitate Escrow Holder's timely payment of Buyer's
Costs and Fees. In the event Buyer's actual closing costs exceed Buyer's Cost Deposit,
Buyer agrees to pay the difference at the Close of Escrow.
3.5 Seller's Costs and Fees. Seller hereby instructs Escrow Holder to pay and
charge to Seller's account the following costs, fees, charges and expenses:
3.5.1 :Seller's Escrow Fees, One half (1/2) of all fees charged by Escrow Holder
In conjunction with this transaction; and
3.5.2 Seller's Recording Few Recording fees incurred for the recordation of
the Assignment: and
3.5.3 Other Customary Seller's Fees. Such other closing costs and fees not
described in Section 3.4 or Section 3.5 which are customarily paid by Seller;
(collectively "Sellers Costs and Fees"). Seller shall, within three(3) days following written
request by Escrow Holder, deposit such funds into Escrow C Setter's Costs Deposit`s as
are reasonably necessary in order to facilitate Escrow Holder's timely payment of Seller's
Costs and Fees.
3.6 Cancellation of Escrow. In the event of cancellation of this Agreement and
Escrow pursuant to the provisions of this Agreement, Escrow Holder shall promptly: (1)
return any documents deposited into Escrow to the parry who deposited them; (ii)
distribute the Down Payment and the Additional Deposit if any, to the party entitled
thereto; and (iii) return Buyer's Costs Deposit and Seller's Costs Deposit, if any, to Buyer
and Seller respectively, excepting therefrom any such Deposits pursuant to Section 3.4
and Section 3.5. Any notice of cancellation affecting this Escrow, for whatever reason
and whenever given, may be given only In writing, delivered to Escrow Holder In
duplicate. On receipt of such notice Escrow Holder shall, within three (3) days, mail one
(1) copy to the other party. Unless written objection thereto from such other party shall
be received by Escrow Holder within ten (10) days after mailing, Escrow Holder is
authorized to comply with any Instructions in such notice and to cancel the Escrow. In
the event written objection Is received within the time stated or in the event conflicting
claims are made upon Escrow Holder in this Escrow, Escrow Holder may refuse to take
any further action hereunder or may Interplead the parties in any court of competent
jurisdiction.
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3.7 Closing Date. It is the express intention of both Buyer and Seller that this
Escrow close not later than March 30, 1993 ("Closing pate"), and Buyer and Seller shall
use their best efforts and do all items reasonably necessary to ensure that Escrow does
close on or before the Closing Date. In the event that Escrow is not closed on or before
the Closing Date, this Agreement and the Escrow shall immediately terminate, and
Escrow Holder shall deliver all items held by it in the manner described in paragraph 3.6
above.
3.8 Close of Escrow. Escrow Holder shall close Escrow as soon as possible
on or before the Closing Date, provided and on condition that all terms and conditions
of this Agreement have been satisfied. "Close of Escrow" shall consist of the occurrence
of each of the following events: (i) receipt by Seller of the entire Purchase Price; (ii)
recordation and delivery of the Assignment and the Note to Buyer: and (iii) issuance of
the Endorsement by the Title Company.
3.9 Breach and Default. A party shall be In material breach and default under
this Assignment upon the occurrence with respect to such party of any one (1) or more
of the following events:
3.9.1 Non-Performance of Obligation The failure by such party to property
perform or cause to be performed in a timely manner each and all of its duties and
obligations as set forth In this Agreement;
3.9.2 Breach of Representation. The breach of any representation, warranty or
covenant of the party as set forth in this Agreement;
3.9.3 Filing of Bankruptcy. The filing by any creditors of the party of an
involuntary petition of bankruptcy against the party which remains undischarged as of the
Closing Date, the filing by the party of a voluntary petition of bankruptcy, or the institution
by the party of proceedings under any law of the United States or any state or foreign
jurisdiction for the relief of debtors; and
3.9.4 Receivership or Assignments. The appointment of a receiver to take
possession of all or substantially all of the assets of the party which remains
undischarged as of the Closing Date, or any general assignment of assets by the party
for the benefit of creditors.
3.10 LIQUIDATED DAMAGES - SELLER'S REMEDY FOR BUYER'S DEFAULT_.
BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IN THE EVENT OF
ANY MATERIAL BREACH OR DEFAULT BY BUYER IN THE PERFORMANCE OF ANY OF
ITS OBLIGATIONS UNDER THIS CONTRACT, SELLER SHALL SUFFER REAL AND
SIGNIFICANT DAMAGE AS A RESULT THEREFROM IN THE FORM OF ADDITIONAL
INTEREST COSTS,MARKETING COSTS,OPPORTUNITY COSTS,AND OTHER RELATED
EXPENDITURES,AND THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL
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TO ASCERTAIN AS OF THE DATE OF THIS CONTRACT THE ACTUAL DAMAGES
WHICH WOULD BE SUFFERED BY SELLER. ACCORDINGLY, IN THE EVENT BUYER
SHALL BE IN DEFAULT IN ANY OF ITS OBLIGATIONS ON THE MANDATORY CLOSING
DATE, THIS ESCROW SHALL BE DEEMED CANCELED AND SELLER MAY INSTRUCT
ESCROW HOLDER, AS MORE PARTICULARLY SET FORTH HEREINBELOW, AND
PROVIDED THAT EACH OF THE CONDITIONS CONTAINED IN SECTIONS S(A)
THROUGH 5(H), INCLUSIVE, BELOW SHALL HAVE BEEN SATISFIED OR WAIVED ON
OR BEFORE THE ADDITIONAL DEPOSIT DEADLINE,TO RETAIN THE DOWN PAYMENT
AND THE ADDITIONAL DEPOSIT IF ANY, WHICH SHALL CONSTITUTE REASONABLE
LIQUIDATED DAMAGES PAYABLE TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE
SECTION 1671 et sue., AND TO DELIVER THE BALANCE OF THE FUNDS DEPOSITED
INTO ESCROW BY BUYER (LESS THE ACTUAL COSTS OF THE ITEMS AND SERVICES
SET FORTH IN SECTION 3 ABOVE), IF ANY, TO BUYER. BUYER ACKNOWLEDGES
AND AGREES THAT IN THE EVENT ESCROW IS SO CANCELED, BUYER SHALL HAVE
NO RIGHT, TITLE OR INTEREST IN OR TO THE NOTE OR DEED OF TRUST. BUYER
HEREBY ACKNOWLEDGES THAT THE LIQUIDATED DAMAGES PROVIDED HEREIN
REPRESENT A REASONABLE AND GOOD FAITH EFFORT ON THE PART OF THE
PARTIES TO ESTIMATE SUCH DAMAGES, AND ARE REASONABLE UNDER THE
CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT. SELLER
HEREBY AGREES THAT ALL LIQUIDATED DAMAGES RETAINED BY SELLER SHALL BE
E SELLER'S EXCLUSIVE REMEDY ON ACCOUNT OF SUCH DEFAULT BY BUYER, AND
SELLER HEREBY WAIVES ALL OTHER REMEDIES IT MIGHT OTHERWISE HAVE AT
LAW OR IN EQUITY, INCLUDING THE RIGHT TO SPECIFIC PERFORMANCE.
3.10.1 PAYMENT OF LIQUIDATED DAMAGES. LIQUIDATED DAMAGES SHALL
BE REMITTED TO SELLER IN ACCORDANCE WITH THE FOLLOWING PROCEDURES:
3.10.1(a) SELLER SHALL GIVE WRITTEN NOTICE TO ESCROW HOLDER AND
TO BUYER BY REGISTERED OR CERTIFIED MAIL OF SELLER'S DETERMINATION THAT
BUYER IS IN DEFAULT UNDER THIS CONTRACT ("SELLER'S NOTICE'.
3.10.1.(b) ESCROW HOLDER SHALL, AT THE EXPIRATION OF TWENTY (20)
DAYS FROM THE DATE OF BUYER'S CONSTRUCTIVE RECEIPT OF SELLER'S NOTICE
("SELLER'S NOTICE PERIOD"), REMIT SAID LIQUIDATED DAMAGES TO SELLER AND
REMIT THE BALANCE OF THE FUNDS DEPOSITED INTO ESCROW BY BUYER (LESS
THE ACTUAL COSTS OF THE ITEMS AND SERVICES SET FORTH IN SECTION 3
ABOVE), IF ANY, TO BUYER, UNLESS WITHIN SELLER'S NOTICE PERIOD, BUYER
GIVES WRITTEN NOTICE TO ESCROW HOLDER THAT SUCH LIQUIDATED DAMAGES
NOT BE REMITTED TO SELLER ("BUYER'S NOTICE-). BUYER NOTICE SHALL BE
VALID AND EFFECTIVE ONLY IF BUYER'S NOTICE CONTAINS BOTH AN
UNEQUIVOCAL RENUNCIATION BY BUYER OF ANY INTEREST IN THE SUBJECT
PROPERTY AND AN UNEQUIVOCAL RELEASE OF SELLER FROM ANY OBLIGATION
WHATSOEVER TO SELL THE SUBJECT PROPERTY TO THE BUYER.
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3.10.1(c) UPON RECEIPT OF BUYER'S NOTICE, ESCROW HOLDER SHALL
IMMEDIATELY NOTIFY SELLER OF SAID CONFLICTING NOTICE. THE CONTROVERSY
CREATED BY THE CONFLICTING NOTICES BY SELLER AND BUYER, AND THE
DISPOSITION OF FUNDS HELD BY ESCROW HOLDER SHALL, ON WRITTEN DEMAND
OF ONE PARTY SERVED ON THE OTHER PARTY, BE SUBMITTED TO ARBITRATION,
AND SUCH ARBITRATION SHALL BE GOVERNED BY THE PROVISIONS OF
PARAGRAPH 22 BELOW.
3.10.2 INDEMNIFICATION OF ESCROW HOLDER. BUYER AND SELLER EACH
AGREE TO INDEMNIFY AND HOLD ESCROW HOLDER HARMLESS FROM ANY CLAIM
BY THE OTHER ARISING OUT OF ANY DISTRIBUTION MADE BY ESCROW HOLDER IN
ACCORDANCE WITH AND PURSUANT TO THE PROVISIONS OF THIS PARAGRAPH.
3.10.3 ACKNOWLEDGEMENT OF UNDERSTANDING. SELLER AND BUYER
EACH ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTOOD THE PROVISIONS
OF THIS SECTION, AND BY PLACING THEIR INITIALS IMMEDIATELY BELOW, AGREE
TO BE BOUND BY ITS TERMS. "1
BUYER'S INITIALS SELLEITS INITIALS
3.11 Conflicting Demands and Interoleader. In the event conflicting demands or
claims shall be made upon Escrow Holder with respect to this Escrow or the rights of any
party hereto, or any money or property deposited into Escrow or affected by these
Escrow Instructions, and Escrow Holder is unable to resolve such conflict to its
reasonable satisfaction based upon these Escrow Instructions, Escrow Holder shall have
the right to discontinue any or all further acts and shall have the further right to
commence or defend any action or proceedings for the determination of such conflict,
including, without limitation, a suit in Interpleader brought by Escrow Holder.
4. Conditions to Seller's Obligations. Seller's obligations pursuant to this
Agreement are conditioned and contingent upon satisfaction or waiver (in writing) of each
and each of the following conditions:
a) Buyer shall have satisfied, on or before the applicable time deadline,
each of Its obligations pursuant to this Agreement; and
b) Each and every warranty and representation made by Buyer is true as
of the date of execution of this Agreement and as of the Closing Date;
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5. Conditions to Buyer's Obligations. Buyer's obligations pursuant to this
Agreement are conditioned and contingent upon the satisfaction or waiver (in writing) of
each of the following conditions:
a) On or before the Additional Deposit Deadline, Seller shall have
postponed the Trustee's sale described In Recital C above until February
2� X1 1993;
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deposits the Additional Deposit into Escrow in the manner described in
paragraph 2(b) above, Seller shall have further postponed the Trustee's
sale described In Recital C above until April 1, 1993;
c) On or before the Additional Deposit Deadline. Seller and Borrower shall
have executed a modification agreement, in form and content acceptable
to Buyer, contingent upon the sale of the Note and Deed of Trust to Buyer,
modifying the terms of the Loan in a manner satisfactory to Buyer;
d) On or before the Additional Deposit Deadline, Borrower shall have
executed a new note, in form and content acceptable to Buyer, Borrower
and Buyer's tax counsel;
e) On or before the Additional Deposit Deadline,the City of San Semardino,
California shall have, by action of its City Council, authorized: (i) the sale
of the Note and Deed of Trust to Buyer; and (ll) the extension of the Note
under the Industrial Revenue Bond Authorization for an additional term of
ten (1 Q) years;
Q On or before the Additional Deposit Deadline, Buyer shall have obtained
a opinion of counsel, in form and content acceptable to Buyer, stating that
the interest paid on the Note will be exempt from any Federal or State
taxation;
g) On or before the Additional Deposit Deadline, Buyer shall have been
permitted to review Seller's files regarding the Note and Deed of Trust,
including without limitation, the most recent appraisal covering the real
property encumbered by the Deed of Trust; provided, however, that Buyer
must conduct its review of said appraisal In Seller's offices and shall not
have the right to make a copy of said appraisal or remove said appraisal
from Seller's offices;
h) On or before the Additional Deposit Deadline, Buyer shall have reviewed
and approved: (i) that certain report prepared by Project Resources, Inc.,
regarding compliance of the Property with ADA standards; and (ii) that
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certain Level One Hazardous Waste Report prepared by Project Resources.
Inc. during the 1992 calendar year; and
Q Seller shall have satisfied, on or before the applicable time deadline, each
of its obligations pursuant to this Agreement.
6. Failure of Conditions: Termination: Waiver.
a) If any of the conditions or obligations Imposed upon Buyer or Seller herein are
not satisfied or waived at the times and In the manner set forth herein, the other party
hereto may terminate this Agreement and shall have all rights and remedies to which said
party is otherwise entitled by law or pursuant to this Agreement tf this Agreement is
terminated, either voluntarily by either party hereto pursuant to the provisions hereof, or
automatically pursuant to the provisions of paragraph 3 above, any and all documents
delivered by any parry hereto shall immediately be returned to such party. If this
Agreement is terminated by either party here o due to the fact that all of the conditions
set forth in Sections 5(a) through 5(h), Indus ve, above were not satisfied or waived on
or before the Additional Deposit Deadline, Eicrow Holder shall immediately return the
Down Payment and Additional Deposit, If an), to Buyer without further demand.
b) At any time or times on or before a Closing Date, either party hereto may
elect to waive any of the conditions or obliga ons imposed upon the other party herein.
Any such waiver shall be effective only K mad. In writing and delivered to the other party
on or before the Closing Date. Closing of th transaction described in this Agreement
without receipt by each parry hereto of ea h and every item specified herein to be
delivered to said party shall not constitute a aiver of said party's right to receive or the
other party's obligation to deliver said item or ems as soon as possible after the Closing
Date. Waiver of any term or condition of this A reement shall not be a waiver of any other
term or condition hereof, nor shall any such w aver reduce the rights or remedies of Seller
arising out of the default by either party hereto of any obligation or failure of any other
condition hereunder.
c) All foreclosure costs incurred from and after the Closing Date in connection with
the foreclosure of the Deed of Trust shall be paid by Buyer.
T. Buyer's Further Obligations. C n or before the Closing Date, each party
hereto agrees to do all other acts necessary to comply with the terms and conditions of
this Agreement and to achieve the purpose f this Agreement.
9
8. Buyer's Warranties and Representations. Buyer expressly acknowledges
that Seller Is materially relying on each of the following representations and warranties
and each of Buyer's other warranties and representations herein, and Buyer warrants and
represents that each of the following statements and each of Buyer's other warranties and
representations herein are true and correct as of the date of this Agreement and as of
the Closing Date, and which representations and warranties shall survive the Closing
Date:
a) This Agreement and all documents required herein, have been duty
authorized,executed and delivered by Buyer, and constitute the legally valid
and binding obligations of Buyer, enforceable In accordance with their
terms. Buyer is a corporation duly organized and validly existing pursuant
to the laws of the State of California;
b) The performance by Buyer of Buyer's obligations hereunder will not
violate or constitute an event of default under the terms and provisions of
any material agreement, document or instrument to which Buyer is a party
or by which Buyer is bound. All proceedings required to be taken by or on
behalf of Buyer to authorize it to make, deliver and carry out the terms of
this Agreement have been duly and properly taken. No further consent of
any person or entity Is required in connection with the execution and
delivery, or performance by Buyer of Its obligations under this Agreement;
c) All Information, materials, reports,contracts and agreements delivered by
Buyer, or its agents or employees, are to the best of Buyer's knowledge,
true and correct in all material respects, and do not omit any material fact;
d) Buyer has not entered into any agreements, oral or written, in connection
with the payment of any commissions or brokerage fees with respect to the
transaction described herein. Buyer hereby agrees to indemnify and hold
Seller, and each of Seller's associates, affiliates, partners, predecessors,
successors, heirs, assigns, agents, employees, representatives and
attorneys (collectively,the"Indemniteesl harmless from any and all manner
of action or actions, cause or causes of action, at law or in equity, suits,
debts, liens, contracts, agreements, promises, liabilities, claims, rights,
obligations, demands, damages, losses, costs or expenses, of any nature
whatsoever, known or unknown, fixed or contingent (collectively referred to
as "Claims`, which any party may have against any of the Indemnitees,
arising out of any commission, brokerage fee or other charge payable to
any party in connection with any of the transactions described in this
Agreement.
9. Seller's Warranties and Representations. Seller expressly acknowledges
that Buyer is materially retying on each of the following representations and warranties
10
and each of Seller's other warranties and representations herein, and Seller warrants and
represents that each of the following statements and each of Seller's other warranties and
representations herein are true and correct as of the date of this Agreement and as of
the Closing Date, and which representations and warranties shall survive the Closing
Date:
a) This Agreement and all documents required herein, have been duly
authorized, executed and delivered by Seller, and constitute the legally valid
and binding obligations of Seller,enforceable in accordance with their terms.
Seller Is a corporation duly organized and validly existing pursuant to the
laws of the State of California;
b) The performance by Seller of Seller's obligations hereunder will not
violate or constitute an event of default under the terms and provisions of
any material agreement, document or instrument to which Seller is a party
or by which Seller is bound. All proceedings required to be taken by or on
behalf of Seller to authorize it to make, deliver and carry out the terms of
this Agreement have been duly and property taken. No further consent of
any person or entity Is required In connection with the execution and
delivery, or performance by Seller of its obligations under this Agreement;
c) All information, materials,reports, contracts and agreements delivered by
Buyer, or its agents or employees, are to the best of Seller's knowledge,
true and correct In all material respects, and do not omit any material fact;
and
d) Seller Is the current legal holder of the Note and the current record
beneficlary of the Deed of Trust. Seller has the full right, power and authority
to sell, assign and transfer the Note and the Deed of Trust to Buyer as
herein provided.
10. No!]-Recourse Transfer. Buyer acknowledges and agrees that the sale,
assignment and transfer of the Note and Deed of Trust by Seller to Buyer is without
recourse to Seller and without representations or warranties. expresses or implied, of any
kind, nature or description, Including but not limited to representations or warranties as
to the validity or effectiveness of the Note or Deed of Trust, or the availability, description,
condition, location or titre of any of the rights sold, assigned or transferred hereby. Seller
makes no representations or warranties concerning the condition or value of the Note,
the Deed of Trust or the Property.
11. Inder3endent Investigation. Buyer acknowledges and agrees that it has
independently investigated the facts surrounding the legal sufficiency of the Note and
Deed of Trust,and is relying solely upon said Independent investigation In purchasing the
Note and Deed of Trust.
11
12. Entire Agreement. This Agreement constitutes the sole and entire
agreement between the parties hereto with respect to the subject matter contained herein.
Any and all prior or contemporaneous agreements and negotiations, whether oral or
written, with respect to the subject matter of this Agreement are superseded. . No
employee or agent of any of the parties hereto has the authority to orally modify any term
or condition of this Agreement nor any authority to make any representation or
agreement other than as contained in this Agreement, and unless any representation or
agreement is contained in this Agreement or added by written agreement executed by
each of the parties hereto, it shall not be binding nor otherwise affect the validity of this
Agreement.
13. Amendment of Agreement. No modification of, deletion from, or addition
to this Agreement shall be effective unless made In writing and executed by each of the
parties hereto.
14. Waiver. The failure by any party to enforce any term or provision of
this Agreement shall not constitute a waiver of the right to enforce the same term or
provision or any other term or provision, thereafter. No waiver by any party of any term
or provision of this Agreement shall be deemed or shall constitute a waiver of any other
provision of this Agreement (whether or not similar), nor shall any waiver constitute a
continuing waive unless otherwise expressly provided in writing.
15. Severabiln. In the event any clause, sentence, term or provision of this
Agreement shall be held by any court of competent jurisdiction to be illegal, invalid or
unenforceable for any reason,the remaining portions of this Agreement shall nonetheless
remain in full force and effect.
16. Construction of Agreement. The section headings contained in this
Agreement have been inserted for convenience only, and shall not be considered or
referred to in resolving questions of interpretation or construction. In determining the
meaning of, or resolving any ambiguity with respect to any word, phrase or provision of
this Agreement, no uncertainty or ambiguity shall be construed or resolved against any
party under any rule of construction, including the party primarily responsible for the
drafting and preparation of this AgreemenL The parties hereto acknowledge that they
were represented by legal counsel in conjunction with this transaction.
17. Gender and Intonation. Wherever the context of this Agreement may so
require, the gender shall include the masculine, feminine and neuter, and the intonation
shall Include the singular and plural.
18. Governing Law. This Agreement is made under and shall be construed in
accordance with and governed by the laws of the State of Califomia, without giving effect
to the principles of conflicts of law.
12
l
19. Attorney;' Fees. In the event either parry to this Agreement shall commence
legal proceedings against the other to enforce the provisions of this Agreement or to
declare rights and/or obligations under this Agreement, the prevailing party shall be
entitled to recover from the losing parry Its costs of suit, including reasonable attomeys'
fees and costs of in-house counsel, as shall be determined by the court.
20. Time of Essence. Time is of the strictest essence with respect to the
obligations of each party under this Agreement.
21. Inurement. This Agreement shall inure to the benefit of and be binding upon
the parties hereto, and their respective successors and assigns.
22. Reference Provision: a) Other than non-judicial foreclosure of security
interests in real or personal property, each controversy, dispute or claim between the
parties arising out of or relating to this Agreement. which controversy, dispute or claim
is not settled In writing within thirty (30) days after the "Claim Date" (defined as the date
on which a party subject to the Agreement gives written notice to all other parties that a
controversy, dispute or claim exists), will be settled by a reference proceeding in Los
Angeles, California in accordance with the provisions of Section 638 at seg. of the
California Code of Civil Procedure, or their successor section ("CCP'J, which shall
constitute the exclusive remedy for the settlement of any controversy, dispute or claim
concerning this Agreement, including whether such controversy, dispute or claim is
subject to the reference proceeding and the parties waive their rights to initiate any legal
proceedings against each other in any court or,jurisdiction other than the Superior Court
of Los Angeles (the "Court"). The referee shall be a retired Judge of the Court selected
by mutual agreement of the parties, and if they cannot so agree within forty-five (45) days
after the Claim Date, the referee shall be promptly selected by the Presiding Judge of the
Los Angeles Superior Court (or his representative). The referee shall be appointed to sit
as a temporary judge, with all of the powers for a temporary judge, as authorized by law,
and upon selection should take and subscribe to the oath of office as provided for In Rule
244 of the California Rules of Court (or any subsequently enacted Rule). Each party shall
have one preemptory challenge pursuant to CCP 170.6. The referee shall (a) be
requested to set the matter for hearing within sixty (60) days after the Claim Date and (b)
try any and all issues of law or fact and report a statement of decision upon them, if
possible, within ninety (90) days of the Claim Date. Any decision rendered by the referee
will be final, binding and conclusive and judgment shall entered pursuant to CCP 644 in
any court in the State of California having jurisdiction. Any party may apply for a
reference at any time after thirty (30) days following notice to any other party of the nature
of the controversy, dispute or claim, by filing a petition for a hearing and/or trial. All
discovery permitted by this Agreement shall be completed no later than fifteen (15) days
before the first hearing date established by the referee. The referee may extend such
period in the event of a parry's refusal to provide requested discovery for any reason
whatsoever, including, without limitation, legal objections raised to such discovery or
unavailability of a witness due to absence or illness. No party shall be entitled to"priority'
13
in conducting discovery. Depositions may be taken by either parry upon seven (7) days
written notice,and, request for production or inspection of documents shall be responded
to within ten (10) days after service. All disputes relating to discovery which cannot be
resolved by the parties shall be submitted to the referee whose decision shall be final and
binding upon the parties.
b) Except as expressly set forth in this Agreement, the referee shall determine
the manner in which the reference proceeding is conducted including the time and place
of all hearings, the order of presentation of evidence, and all other questions that arise
with respect to the course of the reference proceeding. All proceedings and hearings
conducted before the referee, except for trial, shall be conducted without a court reporter,
except that when any party so requests, a court reporter will be used at any hearing
conducted before the referee, The party making such a request shall have the obligation
to arrange for and pay for the court reporter. The costs of the court reporter at the trial
shall be borne equally by the parties.
c) The referee shall be required to determine all issues in accordance with
existing case law and the statutory laws of the State of California. The rules of evidence
applicable to proceedings at law in the State of California will be applicable to the
reference proceeding. The referee shall be empowered to enter equitable as well as legal
relief, to provide all temporary and/or provisional remedies and to enter equitable orders
that will be binding upon the parties. The referee shall issue a single judgment at the
close of the reference proceeding which shall dispose of all of the claims of the parties
that are the subject of the reference. The parties hereto expressly reserve the right to
contest or appeal from the final judgment or any appealable order or appealable
judgment entered by the referee. The parties hereto expressly reserve the right to
findings of fact, conclusions of law, a written statement of decision, and the right to move
for a new trial or a different judgment, which new trial,if granted, is also to be a reference
proceeding under this provision.
d) In the event that the enabling legislation which provides for appointment of
a referee is repealed (and no successor statute is enacted), any dispute between the
parties that would otherwise be determined by the reference procedure herein described
will be resolved and determined by arbitration. The arbitration will be conducted by a
retired judge of the Los Angeles Superior Court, in accordance with the California
Arbitration Act, Sections 1280 through 1294.2 of the CCP as amended from time to time.
The limitations with respect to discovery as set forth hereinabove shall apply to any such
arbitration proceeding.
[SIGNATURES ON FOLLOWING PAGE]
14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first hereinabove written.
IMPERIAL BANK. INVESTMENT CONSULTANTS CORPORATION,
a California banking corporation a Californja- ration
l 7
By: C y By: .
Its: 5 v And:
s
i
A
15
1 RESOLUTION NO.
2
RESOLUTION OF THE COMMUNITY DEVELOPMENT
3 COMMISSION OF THE CITY OF SAN BERNARDINO,
CALIFORNIA, APPROVING A LOAN TO HERITAGE
4 OFFICE BUILDING, LTD. , AND A CERTAIN OWNER
PARTICIPATION AGREEMENT BY AND BETWEEN THE
5 REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO AND HERITAGE OFFICE BUILDING,
6 LTD.
7
WHEREAS, the City of San Bernardino, California (the
8 "City")y ) is a municipal corporation and a charter city duly
9 created and existing pursuant to the Constitution and the laws of
10 the State of California; and
11
12 WHEREAS, the Community Development Commission of the
13 City of San Bernardino (the "Commission") on behalf of the
14 Redevelopment Agency of the City of San Bernardino (the
15 "Agency") , is a redevelopment agency,p g y, a public body, corporate
16 and politic of the State of California, organized and existing
17 pursuant to the Community Redevelopment Law (Part 1 of
18 Division 24) commencing with Section 33000 of the Health and
19 Safety Code of the State of California (the "Act") ; and
20
21 WHEREAS, the City and the Commission have previously
22 approved and adopted the Redevelopment Plan for the Central City
23 North Redevelopment Project Area (the "Redevelopment Plan") ; and
24
25 WHEREAS, in connection with the implementation of the
26 Redevelopment Plan, the Agency has received a request from
27 Heritage Office Building, Ltd. (the "Participating Owner") to
28 assist in the financing, development and renovation of a certain
1 (�
1 building (the "Project") located at 440 West Court Street,
2 San Bernardino, California, which shall be used for the operation
3 of a billiards club and restaurant within the Project Area
4 subject to the Redevelopment Plan; and
5
6 WHEREAS, the Agency deems it desirable to assist the
7 Participating Owner in the renovation and financing of the
8 Project to the extent that the Agency shall provide (i) a
9 guarantee of a loan obtained by the Participating Owner for the
10 costs of financing and renovation of the Project (the
11 "Guarantee") , and (ii) a loan (the "Loan") evidenced by a note
12 (the "Note") executed by the Participating Owner in the amount of
13 $25, 000 for the payment of an extension fee on the financing; and
14
15 WHEREAS, the Guarantee of the Agency shall be in an
16 amount not to exceed $1, 188, 000; and
17
18 WHEREAS, the Agency at this time deems it desirable to
19 approve that certain Owner Participation Agreement by and between
20 the Agency and the Participating Owner and the Note, copies of
21 which are attached hereto as Exhibits "A" and "B", respectively.
22
23
24
25
26
27
28
2 - ��
1 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF
2 THE CITY OF SAN BERNARDINO, CALIFORNIA, DOES HEREBY FIND,
3 RESOLVE, DETERMINE AND ORDER AS FOLLOWS:
4
5 Section 1. The Commission hereby approves the Owner
6 Participation Agreement, a copy of which is attached hereto as
7 Exhibit "A" and incorporated herein by this reference.
8
9 Section 2 . The Commission hereby approves the Loan
10 to the Participating Owner as evidenced by the Note, a copy of
11 which is attached hereto as Exhibit "B" and incorporated herein
12 by this reference.
13
14 Section 3 . The Commission hereby authorizes the
15 Chairman and Secretary and any other off icer or representative so
16 authorized on behalf of the Commission, to execute the Owner
17 Participation Agreement and any and all documents related thereto
18 and authorize the delivery of the Loan and execution of the Note
19 and any and all documents related thereto, on behalf of the
20 Agency in substantially the same form as attached hereto with any
21 such changes as may be approved by the Executive Director of the
22 Agency and Agency Counsel.
23
24
25
26
27
28
3 �
I RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF
SAN BERNARDINO, CALIFORNIA, APPROVING A LOAN TO HERITAGE OFFICE
2 BUILDING, LTD. AND A CERTAIN OWNER PARTICIPATION AGREEMENT BY AND
BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
3 AND HERITAGE OFFICE BUILDING, LTD.
4
Section 4 . This Resolution shall take effect upon
5 its adoption.
6
7
I HEREBY CERTIFY that the foregoing Resolution was duly
8 adopted by the Community Development Commission of the City of
9 San Bernardino at a meeting
10 thereof, held on the day of
11 1993 , by the following vote, to wit:
12
13 Commission Members: AYES NAYS ABSTAIN ABSENT
14 ESTRADA
15 REILLY
HERNANDEZ
16 MAUDSLEY
MINOR
17 POPE-LUDLAM
MILLER
18
19
Secretary
20 The foregoing resolution is hereby approved this
21 day of 1993 .
22
W. R. Holcomb, Chairman
23 Community Development
Commission of the
24 Approved as to City of San Bernardino
25 form and legal content:
26 By'
Agency Counsel
27
20 SBEO\0008\DOC\6
4 - `�
1 STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO ) ss
2 CITY OF SAN BERNARDINO )
3 1, Secretary of the Community
Development Commission of the City of San Bernardino, DO HEREBY
4 CERTIFY that the foregoing and attached copy of Community
Development Commission of the City of San Bernardino Resolution
5 No. is a full, true and correct copy of that now on
file in this office.
6
IN WITNESS WHEREOF, I have hereunto set my hand and
7 affixed the official seal of the Community Development Commission
of the City of San Bernardino this day of
$ , 1993 .
9
10 Secretary of the
Community Development Commission
11 of the City of San Bernardino
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
q11
1 EXHIBIT "A"
2 OWNER PARTICIPATION AGREEMENT
3
4
5
6
7
8
9
10
11
12
13
14
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17
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C�
RECORDING REQUESTED BY:
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND WHEN RECORDED RETURN TO:
SABO & GREEN,
a Professional Corporation
Suite 400
6320 Canoga Avenue
Woodland Hills, California 91367
(Space Above for Recorder's Use)
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
OWNER PARTICIPATION AGREEMENT
HERITAGE OFFICE BUILDING, LTD.
By and Between
REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO
and
HERITAGE OFFICE BUILDING, LTD. ,
a California Limited Partnership
MOM
TABLE OF CONTENTS
Paae
I. [100] SUBJECT OF AGREEMENT
A. [101] Purpose of Agreement . . . . . . . . . . . 1
B. [102] The Redevelopment Plan . . . . . . . . . . 2
C. [103] The Site . . . . . . . . . . . . . . . . . 2
D. [104] Parties to the Agreement . . . . . . . . . 2
1. [105] The Agency . . . . . . . . . . . . . . 2
2. [106] The Participant . . . . . . . . . 3
3. [107] Prohibition Against Change in
Ownership, Management and
Control of the Participant . . . . . . 3
4. [108] Benefit to Project Area . . . . . . . 4
II. [200] AGENCY ASSISTANCE
[2 01] Loan Guaranty . . . . . . . . . . . . . . . 5
III. [300] IMPROVEMENT OF THE SITE
A. [301] Improvement by Participant . . . . . . . . 6
1. [302] Scope of Development . . . . . . . . . 6
2 . [303] Cost of Construction . . . . . . . . . 6
3. [304] Renovation and Rehabilitation Schedule 6
4. [305] Bodily Injury and
Property Damage Insurance . . . . . . 7
5. [306] City and Other Governmental
Agency Permits . . . . . . . . . . . . 8
6. [307] Rights of Access . . . . . . . . . . . 9
7. [308] Local, State and Federal Laws 9
8. [309] Antidiscrimination During
Construction . . . . . . . . . . . . 10
B. [310] Taxes, Assessments, Encumbrances
and Liens . . . . . . . . . . . . . . 10
C. [311] Prohibition Against Transfer of
the Site, the Buildings or
Structures Thereon and Assignment
of Agreement . . . . . . . . . . . . . . 10
D. [312] Guaranty; Deed of Trust . . . . . . . . . it
1. [313] Guaranty . . . . . . . . . . . . . it
2. [314] Deed of Trust . . . . . . . . . . . 11
(i)
E. [315) Mortgage, Deed of Trust, Sale
and Lease-Back Financing;
Rights of Holders . . . . . . . . . . . . 12
1. [316) No Encumbrances Except Mortgages,
Deeds of Trust or Sale
and Lease-Back for Development . . . 12
F. [317] Right of Agency to Satisfy Other
Liens On The Site . . . . . . . . . . . . 12
G. [318] Release of Deed of Trust . . . . . . 13
H. [319) Certificate of Completion . . . . . . . . 14
IV. [400] USES OF SITE
A. [401] Uses - Covenants Running With the Land 14
B. (402) Maintenance of the Site . . . . . . . 17
C. [403] Effect of Violation of the Terms
and Provisions of this Agreement
After Completion of Construction . . . . 18
V. [500) GENERAL PROVISIONS
A. [501] Notices, Demands and Communications
Between the Parties . . . . . . . . . 19
B. (502) Conflicts of Interest; Nonliability 19
C. [503] Enforced Delay; Extension of
Times of Performance . . . . . . . . . . 20
D. [504) Inspection of Books and Records . . . . . 21
VI. (600) DEFAULTS AND REMEDIES
A. [601] Defaults - - General . . . . . . . . . . 21
B. [602] Legal Actions . . . . . . . . . . . . . . 22
1. [603] Institution of Legal Actions . . . . 22
2. (604) Applicable Law . . . . . . . . . . . 22
3 . [605] Acceptance of Service of Process . . 22
C. [606] Rights and Remedies are Cumulative . . . 23
D. [607] Inaction Not a Waiver of Default . . . . 23
E. (608) Remedies . . . . . . . . . . . . . . . . 23
1. (609) Damages . . . . . . . . . . . . . . 23
VII. [700] SPECIAL PROVISIONS
A. [701) Submission of Documents to
Agency for Approval . . . . . . . . . . . 24
B. [702] Successors in Interest . . . . . . . . . 24
(ii)
vl
VIII. [800] ENTIRE AGREEMENT, WAIVERS . . . . . . . . . . 24
IX. [900] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
A. [901] Time for Acceptance . . . . . . . . . . . 25
ATTACHMENT NO. 1 - LEGAL DESCRIPTION OF THE SITE
ATTACHMENT NO. 2 - GUARANTEE AGREEMENT
ATTACHMENT NO. 3 - SCOPE OF DEVELOPMENT
ATTACHMENT NO. 4 - SCHEDULE OF PERFORMANCE
ATTACHMENT NO. 5 - DEED OF TRUST WITH ASSIGNMENT OF RENTS
ATTACHMENT NO. 6 - CERTIFICATE OF COMPLETION
(iii)
SBEO\0008\DOC\3
3\16\93 445 1w
OWNER PARTICIPATION AGREEMENT
THIS AGREEMENT IS ENTERED INTO this day of
, 1993, by and between the REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO (the "Agency") , and HERITAGE OFFICE
BUILDING, LTD. , a California Limited Partnership (the
"Participant") . Agency and Participant hereby agree as follows:
I. [100] SUBJECT OF AGREEMENT
A. [101] Purpose of Agreement
The purpose of this Agreement is to effectuate the
Redevelopment Plan for the Central City North Redevelopment Project
(the "Redevelopment Plan") by providing for Agency assistance to
Participant in connection with the improvement of the Site, as
hereinafter defined, which is located within the Central City North
Redevelopment Project Area (the "Project Area") and which
improvements will provide for economic development which will
directly benefit the Project Area. The completion of the
improvements on the Site pursuant to this Agreement is in the vital
and best interests of the City of San Bernardino, California (the
"City") and the health, safety and welfare of its residents, and in
accord with the public purposes and provisions of applicable state
and local laws and requirements under which the Redevelopment Plan
has been undertaken.
B. [102] The Redevelopment Plan
The Redevelopment Plan was approved by Ordinance of the
Common Council of the City of San Bernardino; said Ordinance and
the Redevelopment Plan as so approved are incorporated herein by
reference. The Redevelopment Plan provides for the undertaking of
redevelopment activities.
C. [103] The Site
The Site is that certain real property generally located
at 440 West Court Street in the City of San Bernardino and as more
fully described in the "Legal Description of the Site", which is
attached hereto as Attachment No. 1 and is incorporated herein by
this reference.
D. [104] Parties to the Agreement
1. [105] The Agency
The Agency is a public body, corporate and politic,
exercising governmental functions and powers and organized and
existing under Chapter 2 of the Community Redevelopment Law of the
State of California (Health and Safety Code Section 33020, et seq.)
The principal office of the Agency is located at 201 North "E"
Street, San Bernardino, California 92401.
"Agency", as used in this Agreement, includes the
Community Development Commission of the City of San Bernardino, the
Economic Development Agency of the City of San Bernardino, the
Redevelopment Agency of the City of San Bernardino and any
2 -
assignee of or successor to their rights, powers and
responsibilities.
2 . [106] The Participant
The principal office and mailing address of the
Participant for purposes of this Agreement is 1731-A Orange Tree
Lane, Redlands, California 92374, Attn: Russell Hatle.
3. [107] Prohibition Against Change in Ownership
Management and Control of the
Participant
The qualifications and identity of the Participant are of
particular concern to the Agency. It is because of those
qualifications and identity that the Agency has entered into this
Agreement with the Participant. No voluntary or involuntary
successor in interest of the Participant shall acquire any rights
or powers under this Agreement except as expressly set forth
herein.
The Participant shall not assign all or any part of this
Agreement or any rights hereunder without the prior written
approval of the Agency, which approval the Agency may grant,
withhold or deny at its discretion. In the event of such transfer
or assignment: (1) the assignee shall expressly assume the
obligations of the Participant pursuant to this Agreement in
writing satisfactory to the Agency; (2) the original Participant
shall remain fully responsible for the performance and liable for
the obligations of the Participant pursuant to this Agreement; and
3 - ��
(3) any guarantees provided to assure the performance of the
Participant's obligations under this Agreement shall remain in full
force and effect.
In the absence of specific written agreement by the
Agency, no such transfer, assignment or approval by the Agency
shall be deemed to relieve the Participant or any other party from
any obligation under this Agreement.
All of the terms, covenants and conditions of this
Agreement shall be binding upon and shall inure to the benefit of
the Participant and the permitted successors and assigns of the
Participant. Whenever the term "Participant" is used herein, such
term shall include any other permitted successors and assigns as
herein provided.
The restrictions of this Section 107 shall terminate and
be of no further force and effect upon the repayment in full of the
loan to which the Guaranty (as hereinafter defined) applies.
4 . (108) Benefit to Protect Area
Agency has determined that the development of the Site in
accordance with this Agreement will eliminate blight and provide a
benefit to the Project Area through an increase in sales tax
revenues.
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II. (200] AGENCY ASSISTANCE
A. (201] Loan Guarantv
Agency agrees to guaranty (the "Guaranty") repayment by
Participant of a certain loan in favor of Investment Consultants
Corporation, a California corporation, or such other lender as the
Agency may approve in writing, which loan is to be in a principal
amount equal to One Million One Hundred Eighty Eight Thousand
Dollars ($1, 188, 000) (hereinafter referred to as the "Participant
Loan") , as follows: The proceeds of the Participant Loan are to be
used by Participant to cause the expansion and renovation of an
existing building on the Site, for the creation of a billiards club
and restaurant (the "Project") . The Guaranty shall be reflected in
a certain Guaranty Agreement in favor of the lender, as provided in
Section 312 hereof, and shall be in a form substantially similar to
Attachment No. 2 attached hereto and incorporated herein by
reference. In consideration for the Agency's provision of the
Guaranty, the Participant shall cause the completion of the Project
in accordance with the Schedule of Performance (See Section 304)
and shall execute a Deed of Trust conveying title to the Site in
favor of the Agency as provided in Section 314 hereof.
The Agency's obligation with respect to the execution and
provision of the Guaranty shall become binding only upon receipt by
the Participant of all necessary entitlements and permits as
provided in Section 306 hereof, and at such time as the Agency has
received an executed original of this Agreement and a Deed of Trust
conveying title to the Site.
5
III. [300] IMPROVEMENT OF THE SITE
A. [301] Improvement by Participant
Participant and Agency agree that the central purpose of
this Agreement is to provide for the renovation of the existing
building on the Site in order to increase business and sales
related to the Site by conforming the Site for use as a billiards
club and restaurant.
1. [302] Scope of Development
The Site shall be developed by Participant as provided in
the "Scope of Development", which is attached hereto as Attachment
No. 3 and is incorporated herein and in a manner consistent with
the provisions of the Redevelopment Plan.
2. [303] Cost of Construction
The cost of constructing the Project shall be borne
solely by Participant. The Agency shall have no obligations, other
than as expressly set forth herein, with respect to the funding of
the Project.
3. [304] Renovation and Rehabilitation Schedule
Upon execution of this Agreement, Participant will
promptly begin and diligently prosecute to completion the
renovation of the Project. Participant shall begin and complete
all renovation and development of the Project within the times
specified in the "Schedule of Performance" which is attached hereto
as Attachment No. 4 and incorporated herein. Participant shall
6 -
strictly conform to all time requirements and limitations set forth
in this Agreement.
4. [305) Bodily Iniury and Property Damage
Insurance
Participant shall defend, assume all responsibility for
and hold the Agency, the City and their respective officers, agents
and employees, harmless from all claims or suits for, and damages
to, property and injuries to persons, including accidental death
(including attorneys' fees and costs) , which may be caused by any
of Participant's activities under this Agreement, whether such
activities or performance thereof be by the Participant or anyone
directly or indirectly employed or contracted with by Participant
and whether such damage shall accrue or be discovered before or
after termination of this Agreement. Participant shall take out
and maintain a comprehensive liability and property damage policy
in the amount of One Million Dollars ($1, 000, 000) combined single
limit, including contractual public liability, and shall protect
City and Agency from claims for damages arising out of Participants
activities under this Agreement as described hereinabove, until two
(2) years after the expiration of the Guaranty.
Participant shall furnish a certificate of insurance
countersigned by an authorized agent of the insurance carrier on a
form of the insurance carrier setting forth the general provisions
of the insurance coverage. This countersigned certificate shall
name the City and Agency and their respective officers, agents, and
employees as additional insureds under the policy. The certificate
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by the insurance carrier shall contain a statement'of obligation on
the part of the carrier to notify City and the Agency of any
material change, cancellation or termination of the coverage at
least thirty (30) days in advance of the effective date of any such
material change, cancellation or termination. Coverage provided
hereunder by Participant shall be primary insurance and not
contributing with any insurance maintained by Agency or City, and
the policy shall contain such an endorsement. The insurance policy
or the certificate of insurance shall contain a waiver of
subrogation for the benefit of the City and Agency.
Participant shall furnish or cause to be furnished to
Agency evidence satisfactory to Agency that any contractor with
whom it has contracted for the performance of work on the Site or
otherwise pursuant to this Agreement carries workers' compensation
insurance as required by law.
5. (306) City and Other Governmental Agency Permits
The Guaranty shall be contingent upon the Participant, at
its own expense, securing or causing to be secured, any and all
permits for all necessary on-site and off-site improvements which
may be required by the City or any other governmental agency having
jurisdiction over such construction, development or work.
Nothing contained in this Agreement shall be deemed to be
an approval by the City of any application or permit required to be
obtained by Participant from the City.
6. [307] Rights of Access
For the purpose of assuring compliance with this
Agreement, representatives of Agency and the City shall have the
right of access to the Site, without charges or fees, at normal
construction hours during the period of work for the purposes of
this Agreement, including, but not limited to, the inspection of
the work being performed in constructing the improvements, so long
as they comply with all safety rules. Such representatives of
Agency or of the City shall be those who are so identified in
writing by the Executive Director of Agency. Agency shall hold the
Participant harmless from any bodily injury or related damages
arising out of the activities of Agency and the City as referred to
in this Section 307 and resulting from the gross negligence or
willful misconduct of the City or Agency. This Section 307 shall
not be deemed to diminish or limit any rights which the City or
Agency may have by operation of law irrespective of this Agreement.
7. [308] Local, State and Federal Laws
Participant shall carry out the Project and all related
activities on the Site in conformity with all applicable laws,
including all applicable federal and state labor standards;
provided, however, Participant and its contractors, successors,
assigns, transferees, and lessees are not waiving their rights to
contest any such laws, rules or standards. Participant and its
contractors and sub-contractors shall pay prevailing wages to all
employees with respect to the Project.
9 -
8 . [309] Antidiscrimination During Construction
Participant, for itself and successors and assigns,
agrees that in the construction of the improvements provided for in
this Agreement, Participant shall not discriminate against any
employee or applicant for employment because of race, color, creed,
religion, age, sex, marital status, handicap, national origin or
ancestry.
B. [310] Taxes. Assessments. Encumbrances and Liens
Prior to expiration of the Guaranty, Participant shall
not place or allow to be placed on the Site or any part thereof any
mortgage, trust deed, encumbrance or lien without the express- prior
written consent of the Agency. Such written consent shall not be
unreasonably withheld to the extent the Participant is seeking
construction or permanent financing related to the Project.
C. [311] Prohibition Against Transfer of the Site the
Buildings or Structures thereon and Assignment
of Agreement
Prior to expiration of the Guaranty, Participant shall
not, except as permitted by this Agreement, without the prior
written approval of Agency, make any total or partial sale,
transfer, conveyance, assignment or lease of the whole or any part
of the Site or of the buildings or structures on the Site. This
prohibition shall not be deemed to prevent a transfer expressly
permitted pursuant to Section 107 of this Agreement, or the
granting of temporary or permanent easements or permits to
facilitate the development of the Site. In addition, Participant
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I�
agrees the lease which shall be entered with the tenant which shall
occupy the Site for the operation of a billiards club and
restaurant shall be for a period of ten (10) years, subject to two
five (5) year options.
D. (312] Guaranty; Deed of Trust
1. (313] Guaranty
The Agency shall execute the Guaranty in substantially
the form as attached hereto as Attachment No. 2, which Guaranty
shall be in favor of the lender described therein. The Agency's
obligation to guaranty the loan to the Participant for the purposes
of completing the Project shall be limited to an amount equal to
One Million One Hundred Eighty Eight Thousand Dollars ($1, 188,000) .
2 . (314] Deed of Trust
In consideration for the Agency's execution and provision
of the Guaranty, Participant shall execute a Deed of Trust in the
Form of Attachment No. 5, attached hereto and incorporated herein
by this reference. Said Deed of Trust shall be subordinated to
such financing as the Agency may approve in writing for the
purposes of completing the Project.
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E. (315) Mortgage, Deed of Trust Sale and Lease-Back
Financing; Rights of Holders
1. (316] No Encumbrances Except Mortgages Deeds
of Trust or Sale and Lease-Back for
Development
Participant intends to obtain, and Agency agrees thereto,
a loan for the undertaking of the Project in the approximate amount
of $1, 188, 000. Participant shall not enter into any conveyance or
lien for financing without the prior written approval of Agency,
which approval Agency agrees to give if any such conveyance or lien
for financing is related to the Project and is given to a bank,
savings and loan association, or other similar lending institution
and the terms of said financing are reasonably acceptable to
Agency. Approval of such other conveyance or lien for financing by
the Agency shall not constitute a subordination of the Deed of
Trust to such conveyance or lien without the express written
approval of the Agency. The form of approval by Agency shall be in
writing which references this Section 3151 executed by the
Executive Director of the Agency. In the event that the Agency
fails to accept or reject such lender in writing within fifteen
(15) days after written notice thereof is received by the Agency,
such lender shall be deemed approved.
F. (317) Right of Agency to Satisfy Other Liens On The
Site
Prior to the completion of the Project, and after
Participant has had written notice and has failed after a
reasonable time, but in any event not less than fifteen (15) days,
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to challenge, cure, adequately bond against, or satisfy any liens
or encumbrances on the Site which are not otherwise permitted under
this Agreement, Agency shall have the right but not the obligation
to satisfy any such liens or encumbrances and to seek
indemnification therefor from the Participant.
G. (318] Release of Deed of Trust
Upon repayment in full of all sums owed under the
Participant Loan and the expiration of the Guaranty, Agency agrees
to reconvey the Deed of Trust. Upon the recording of a
reconveyance of the full Deed of Trust, any party then owning or
thereafter purchasing, leasing or otherwise acquiring any interest
in the site shall not, as a result of such ownership, lease or
acquisition, incur any obligation or liability under this Agreement
except that such party shall be bound by the covenants set forth in
Section 401 of this Agreement, which shall be applicable, each
according to its terms.
Regardless of Participant's ability to complete
construction of the Project, Participant agrees to repay the
Participant Loan applicable to the funding of the Project in full
at such times and as provided in the applicable Participant Loan
documents and in no event later than within (_) years
of the date of execution of this Agreement. A failure to do so
within thirty (30) days of Agency's written demand shall constitute
a material breach of this Agreement and shall entitle Agency to
declare Participant in default, and to foreclose upon the Deed of
- 13 - /N
Trust, and/or to exercise any other remedies available under this
Agreement, the Deed of Trust or at law or in equity.
H. [319] Certificate of Completion.
The Agency, its successors and assigns agree that upon
the full compliance by the Participant with the terms of this
Agreement which pertain to the construction of the Project upon the
Site, and following completion of the Project, the receipt by the
Agency of a written request from the Participant for a Certificate
of Completion and notification that the Project is completed, the
Agency shall provide promptly and furnish to the Participant a
Certificate of Completion, substantially in the form as attached
hereto as Attachment 6, certifying that the construction of the
Project, as required pursuant to this Agreement, has been completed
to the satisfaction of the Agency, its successors and assigns.
Said Certificate of Completion may be executed by the Executive
Director of the Agency without further formal approval by the
Community Development Commission.
IV. [400] USES OF SITE
A. [401] Uses - Covenants Running With the Land
The Participant covenants and warrants that Participant
shall develop improvements on the Site in accordance with the Scope
of Development. Participant covenants to develop the Site in
conformity with all applicable laws. The covenants of this
paragraph shall run with the land.
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Participant covenants by and for itself and any
successors in interest that there shall be no discrimination
against or segregation of any person or group of persons on account
of race, color, creed, religion, sex, marital status, age,
handicap, national origin or ancestry in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the Site, nor
shall Participant itself or any person claiming under or through it
establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees of the Site. The foregoing covenants shall
run with the land.
All deeds, leases or contracts pertaining to the Site
shall contain or be subject to substantially the following
nondiscrimination or non-segregation clauses:
1. In deeds: "The grantee herein covenants by and for
himself or herself, his or her heirs, executors, administrators and
assigns, and all persons claiming under or through them, that there
shall be no discrimination against or segregation of, any person or
group of persons on account of race, color, creed, religion, sex,
marital status, age, handicap, national origin or ancestry in the
sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the land herein conveyed, nor shall the grantee
himself or herself or any person claiming under or through him or
her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
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location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees in the land herein conveyed. The foregoing
covenants shall run with the land. "
2 . In leases: "The lessee herein covenants by and for
himself or herself, his or her heirs, executors, administrators and
assigns, and all persons claiming under or through him or her, that
this lease is made and accepted upon and subject to the following
conditions: "There shall be no discrimination against or
segregation of any person or group of persons on account of race,
color, creed, religion, sex, marital status, handicap, age,
ancestry or national origin in the leasing, subleasing,
transferring, use, occupancy, tenure or enjoyment sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the
premises herein leased nor shall the lessee himself or herself, or
any person claiming under or through him or her, establish or
permit any such practices or practices of discrimination or
segregation with reference to the selection, location, number, use
or occupancy of tenants, lessees, sublessees, subtenants or vendees
in the premises herein leased. "
3 . In contracts: "There shall be no discrimination
against or segregation of, any person, or group of persons on
account of race, color, creed, religion, sex, marital status, age,
handicap, ancestry or national origin, in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the
premises, nor shall the transferee himself or herself or any person
claiming under or through him or her, establish or permit any such
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'�1
practice or practices of discrimination or segregation with
reference to the selection, location, number use or occupancy of
tenants, lessees, subtenants, sublessees or vendees of the
premises. "
B. (402) Maintenance of the Site
Participant shall maintain the Site and shall keep the
Site free from any accumulation of debris or waste materials.
Participant further agrees to maintain the Site in a neat
and attractive manner so as not to, in the reasonable determination
of an appropriate officer of the City, be a public nuisance, or be
detrimental to the health, safety and welfare of the public, or
impair value of property within one thousand (1, 000) feet of the
Site, and agrees that in the event Participant fails to do so,
Agency may enter upon the Site for the purposes of performing
necessary and desirable maintenance, that Participant will be
responsible for the cost of any such maintenance undertaken by
Agency, which shall be paid within thirty (30) days after receipt
by Participant of written demand therefor. In addition, the
Participant agrees that to the extent it is in violation of the
provisions of this Section 402, the Agency shall have a right to
place a lien against the Site in an amount necessary to cover its
costs associated with such violation.
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C. [403] Effect of Violation of the Terms and
Provisions of this Agreement After Completion
of Construction
The covenants established in this Agreement shall,
without regard to technical classification and designation, be
binding for the benefit and in favor of Agency, its successors and
assigns, as to those covenants which are for its benefit. The
covenants contained in this Agreement shall remain in effect until
the termination date of the Redevelopment Plan unless an earlier
date is specified in this Agreement. The covenants against racial
discrimination shall remain in perpetuity.
Agency is deemed the beneficiary of the terms and
provisions of this Agreement and of the covenants running with the
land, for and in its own rights and for the purposes of protecting
the interests of the community and other parties, public or
private, in whose favor and for whose benefit this Agreement and
the covenants running with the land have been provided. The
Agreement and the covenants shall run in favor of the Agency,
without regard to whether Agency has been, remains or is an owner
of any land or interest therein in the Site. Agency shall have the
right, if the Agreement or covenants are breached, to exercise all
rights and remedies, and to maintain any actions or suits at law or
in equity or other proper proceedings to enforce the curing of such
breaches to which it or any other beneficiaries of this Agreement
and covenants may be entitled.
18 - �;
V. (500] GENERAL PROVISIONS
A. (501) Notices, Demands and Communications Between
the Parties
Written notices, demands and communications between
Agency and Participant shall be sufficiently given if delivered by
hand (and a receipt therefor is obtained or is refused to be given)
or dispatched by registered or certified mail, postage prepaid,
return receipt requested, to the principal offices of Agency and
Participant. Such written notices, demands and communications may
be sent in the same manner to such other addresses as such party
may from time to time designate by mail as provided in this
Section 501.
Any written notice, demand or communication shall be
deemed received immediately if delivered by hand and shall be
deemed received on the tenth day from the date it is postmarked if
delivered by registered or certified mail.
B. (502) Conflicts of Interest; Nonliability
No member, official or employee of Agency or the City
shall have any personal interest, direct or indirect, in this
Agreement. No member, official or employee shall participate in
any decision relating to the Agreement which affects his personal
interests or the interests of any corporation, partnership or
association in which he is directly or indirectly interested. No
member, official or employee of Agency or the City shall be
personally liable to Participant, or any successor in interest, in
the event of any default or breach by Agency or Participant, or for
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any amount which may become due to Participant or its successor or
on any obligations under the terms of this Agreement.
Participant represents and warrants that it has not paid
or given, and shall not pay or give, any third party any money or
other consideration for obtaining this Agreement.
C. (503] Enforced Delay; Extension of Times of
Performance
In addition to specific provisions of this Agreement,
performance by either party hereunder shall not be deemed to be in
default, and all performance and other dates specified in this
Agreement shall be extended, where delays or defaults are due to:
war; insurrections; floods; earthquakes; fires; casualties; acts of
God; acts of the public enemy; freight embargoes; governmental
restrictions or priority; litigation; unusually severe weather;
acts or omissions of another party; acts or failures to act of the
City or any other public or governmental agency or entity (other
than the acts or failures to act of Agency which shall not excuse
performance by Agency) ; or any other causes beyond the control or
without the fault of the party claiming an extension of time to
perform. Notwithstanding anything to the contrary in this
Agreement, an extension of time for any such cause shall be for the
period of the enforced delay and shall commence to run from the
time of the commencement of the cause, if notice by the party
claiming such extension is sent to the other party within thirty
(30) days of the commencement of the cause. Times of performance
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under this Agreement may also be extended in writing by the mutual
agreement of Agency and Participant.
Participant is not entitled pursuant to this Section 503
to an extension of time to perform because of past, present, or
future difficulty in obtaining suitable temporary or permanent
financing for the Site.
D. [504] Inspection of Books and Records
Agency has the right at all reasonable times to inspect
the books and records of Participant pertaining to the Site as
pertinent to the purposes of this Agreement. Participant has the
right at all reasonable times to inspect the public records of
Agency pertaining to the Site as pertinent to the purposes of the
Agreement.
VI. (600) DEFAULTS AND REMEDIES
A. [601] Defaults - - General
Subject to the extensions of time set forth in
Section 503, failure or delay by any party to perform any term or
provision of this Agreement constitutes a default under this
Agreement. The party who so fails or delays must immediately
commence to cure, correct, or remedy such failure or delay, and
shall complete such cure, correction or remedy with diligence.
The injured party shall give written notice of default to
the party in default, specifying the default complained of by the
injured party. Except as required to protect against further
- 21 - y
damages, the injured party may not institute proceedings against
the party in default until thirty (30) days after giving such
notice. Failure or delay in giving such notice shall not
constitute a waiver of any default, nor shall it change the time of
default.
B. (602) Legal Actions
1. (603) Institution of Legal Actions
In addition to any other rights or remedies hereunder,
Agency or Participant may institute legal action to cure, correct
or remedy any default, to recover damages for any default, or to
obtain any other remedy consistent with the purpose of this
Agreement. Any legal actions initiated pursuant to this Agreement
or otherwise with respect to this subject matter must be instituted
in the Superior Court of the County of San Bernardino, State of
California, or in an appropriate municipal court in that county.
2 . [604) Applicable Law
The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
3 . [605] Acceptance of Service of Process
In the event that any legal action is commenced by any
party against another party, service of process on such party shall
be made by personal service upon such party or in such other manner
as may be provided by law, and shall be valid whether made within
or without the State of California.
22 -
C. [606] Rights and Remedies are Cumulative
Except as otherwise expressly stated in this Agreement,
the rights and remedies of the parties are cumulative, and the
exercise by any party of one or more of such rights or remedies
shall not preclude the exercise by it, at the same or different
times, of any other rights or remedies for the same default or any
other default by any other party.
D. [607] Inaction Not a Waiver of Default
Any failures or delays by any party in asserting any of
its right and remedies as to any default shall not operate as a
waiver of any default or of any such rights or remedies, or deprive
any party of its right to institute and maintain any actions or
proceedings which it may deem necessary to protect, assert or
enforce any such rights or remedies.
E. [608] Remedies
1. [609] Damages
If either Participant or Agency defaults with regard to
any of the provisions of this Agreement, the non-defaulting party
shall serve written notice of such default upon the defaulting
party. If the default is not cured or if a cure has not been
commenced and is being diligently pursued to completion by the
defaulting party within thirty (30) days after service of the
notice of default, the defaulting party shall be liable to the
other for any damages caused by such default, and the non-
defaulting party shall have the right to seek specific performance
and such other remedies as are available in law or equity.
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C�
VII. [700) SPECIAL PROVISIONS
A. [701) Submission of Documents to Agency for Approval
Whenever this Agreement requires Participant to submit
any document to Agency for approval, which shall be deemed approved
if not acted on by Agency within the specified time, said document
shall be accompanied by a letter stating that it is being submitted
and will be deemed approved unless rejected by Agency within the
stated time. If there is not a time specified herein for such
Agency action, Participant may submit a letter requiring Agency
approval or rejection of documents within thirty (30) days after
submission to Agency or such documents shall be deemed approved.
B. (702) Successors in Interest
The terms, covenants, conditions and restrictions of this
Agreement shall extend to and shall be binding upon and inure to
the benefit of the heirs, executors, administrators, successors and
assigns of Participant and Agency.
VIII. (800) ENTIRE AGREEMENT, WAIVERS
This Agreement is executed in four (4) duplicate
originals, each of which is deemed to be an original. This
Agreement includes Attachments 1 through 6, which together with
this Agreement constitute the entire understanding and agreement of
the parties.
No private entity shall be deemed to be a third party
beneficiary with respect to any provisions of this Agreement.
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t
This Agreement integrates all of the terms and conditions
mentioned herein or incidental hereto, and supersedes all
negotiations or previous agreements among the parties or their
predecessors in interest with respect to all or any part of the
subject matter hereof.
All waivers of the provisions of this Agreement must be
in writing by the appropriate authorities of the Agency and
Participant, and all amendments hereto must be in writing by the
appropriate authorities of Agency and Participant, except that the
Executive Director of Agency may agree to non-substantive changes
hereto with concurrence by Agency Counsel.
Each individual signing below represents and warrants
that he has the authority to execute this Agreement on behalf of
and bind the party he purports to represent.
IX. [900) TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
A. [901) Time for Acceptance
This Agreement, when executed by Participant and
delivered to Agency, must be authorized, executed and delivered by
Agency on or before thirty (30) days after signing and delivery of
this Agreement by Participant or this Agreement shall be void,
except to the extent that Participant shall consent in writing to
a further extension of time for the authorization, execution and
delivery of this Agreement. The date of this Agreement shall be
the date when it shall have been signed by the Agency as evidenced
by the date first above shown.
25 -
J
IN WITNESS WHEREOF, Agency and Participant have executed
this Agreement on the day and date first above shown.
"Agency"
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
By:
Kenneth J. Henderson
Executive Director
APPROVED AS TO PROGRAM:
Stafford W. Parker
Deputy Director
APPROVED AS TO FORM AND
LEGAL CONTENT:
By:
Special Agency Counsel
"Participant"
HERITAGE OFFICE BUILDING, LTD. ,
a California Limited Partnership
By: Russell Hatle
Title: General Partner
- 26 -
STATE OF CALIFORNIA )
COUNTY OF ss.
)
On before me,
personally appeared '
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacity(ies) , and that by his/her/their signature(s) on the
instrument the person(s) , or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal. (Seal)
Signature
°I
STATE OF CALIFORNIA )
COUNTY OF ) ss.
On before me, JI
personally appeared
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacity(ies) , and that by his/her/their signature(s) on the
instrument the person(s) , or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal. (Seal)
Signature
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On before me,
personally appeared
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacity(ies) , and that by his/her/their signature(s) on the
instrument the person(s) , or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal. (Seal)
Signature
ATTACHMENT NO. 1
LEGAL DESCRIPTION OF THE SITE
I
I -
ATT. 1 - Page 1
ATTACHMENT NO. 2
GUARANTEE
1. The parties to this agreement are Investment Consultants
Corporation, a California corporation (hereinafter referred to
as "ICC") , Heritage Office Building, Ltd. , (hereinafter
referred to as "Heritage") and the Redevelopment Agency of the
City of San Bernardino (hereinafter referred to as
"Redevelopment Agency") .
2. ICC is a California corporation and has been approached by
Heritage, which has requested a loan from ICC in the sum of
One Million One Hundred Eighty Eight Thousand Dollars
($1, 188, 000) . ICC is unwilling to extend credit to Heritage
without an absolute guarantee of repayment from the
Redevelopment Agency. The Redevelopment Agency has agreed to
undertake to guarantee the obligation of Heritage, and
accordingly, the following agreement is made.
3. Redevelopment Agency unconditionally and absolutely guarantees
and promises to pay to ICC or order, on demand, in lawful
money of the United States, any and all indebtedness of
Heritage to ICC arising out of the execution of a Promissory
Note by Heritage attached hereto as Exhibit "A" and
incorporated by reference throughout.
4. The Redevelopment Agency's obligations to ICC are solely with
respect to the debt incurred by Heritage by way of the
Promissory Note entered into by and between ICC and Heritage.
The Redevelopment Agency's obligation hereunder shall not
extend to any other obligation of Heritage to ICC, or any
third party, whatsoever.
5. The amount of the Redevelopment Agency's obligations to ICC
shall not exceed the principal and interest and any other sums
due under Exhibit "A", less any payments made on account
thereof by Heritage or any other party. Any obligation of the
Redevelopment Agency hereunder shall cease upon payment in
full of all sums due under said Promissory Note, regardless of
the source of said payment.
6. The obligations of the Redevelopment Agency under this
Guarantee do not extend to any prior, contemporaneous or
future debt owed by Heritage to ICC other than the debt
evidenced by Exhibit "A" .
7. ICC may not, without the prior written consent of the
Redevelopment Agency, enter into any material modification,
amendment, waiver or other change in the terms, amount or
conditions of the Promissory Note, nor renew, extend, postpone
or accelerate other than for breach the time for payment or
otherwise change the terms of the Promissory Note without the
written consent of the Redevelopment Agency. Mere failure by
ATT. 2 - Page 1
t
ICC to notice a default or to collect payments promptly shall
not be deemed to be an extension or postponement. Extensions
of up to 90 days on payment or acceptance of interest only up
to 90 days shall not be deemed to be material.
8. ICC shall not notice any default or accelerate the payment of
the Promissory Note until the Redevelopment Agency has been
given thirty (30) days prior written notice of the nature of
the default so as to enable the Redevelopment Agency to
contact Heritage and seek to obtain compliance by Heritage
with the terms of the obligation. After such thirty (30) day
notice period has elapsed, ICC may accelerate the obligation
as provided in the Promissory Note and may serve Redevelopment
Agency with a Notice of Default, Notice of Acceleration of the
Obligation and Demand for Payment and thereafter ICC may
commence an action directly against Redevelopment Agency for
all sums due on account of the obligation. ICC will not be
required to proceed against the principal or perform any other
condition precedent to the liability of Redevelopment Agency
hereunder.
9. The parties agree and stipulate that Heritage has executed the
Promissory Note, that the person signing the Promissory Note
on behalf of Heritage has the authority to do so, is not
acting under any disability and that Heritage is a duly
formed, organized and existing corporation empowered to
execute the Promissory Note. Further, the parties stipulate
that ICC has made no representations, promises or statements
to Redevelopment Agency concerning the credit worthiness,
financial strength, or ability of Heritage to repay the
obligation, and Redevelopment Agency has acted on its own
investigation with respect to entering into this Guarantee
Agreement. Further, the parties agree that ICC is under no
obligation to furnish any financial information to
Redevelopment Agency in the future concerning the financial
condition or activities of Heritage, other than any Notice of
Default or Demand for Payment as set forth hereinabove.
ATT. 2 - Page 2
10. Redevelopment Agency represents that it is lawfully empowered
to execute this Guarantee and that the signatures on this
document are made by persons authorized and empowered to act
on behalf of Redevelopment Agency.
WHEREFORE THE PARTIES HAVE EXECUTED THIS AGREEMENT ON THE DATE
HEREOF:
DATED: INVESTMENT CONSULTANTS
CORPORATION
By
DATED: HERITAGE OFFICE BUILDING, LTD.
By
DATED: REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
By
ATT. 2 - Page 3
ATTACHMENT NO. 3
SCOPE OF DEVELOPMENT
I. GENERAL DESCRIPTION
The Site is specifically described in the Legal
Description (Attachment No. 1) pursuant to Section 103 of this
Agreement.
II. DEVELOPMENT
Participant shall develop the Site by constructing
improvements to the existing structures on the Site in order to
remodel and conform the Site for use as a billiards club and
restaurant (the "Project") .
The Participant shall commence and complete the Project
by the respective times established therefor in the Schedule of
Performance (Attachment No. 4) .
III. DEVELOPMENT STANDARDS
The Project shall be developed in accordance with
applicable building and safety codes.
ATT. 3 - Page 1
I�
ATTACHMENT NO. 4
SCHEDULE OF PERFORMANCE
1. Execution of Agreement by Not later than thirty (30) days
Agency. Agency shall approve after the date of execution and
and execute this Agreement, and submission of two (2) copies of
shall deliver one (1) copy this Agreement to Agency by
thereof to Participant. Participant.
2. Submit all necessary plans Not later than May 1, 1993 .
and receive all necessary
entitlements.
3. Commence Renovation of the Not later than June 1, 1993.
Project.
4. Participant shall complete Not later than June 1, 1994.
construction of the Project as
evidenced by the issuance of
a Certificate of Occupancy.
ATT. 4 - Page 1
ATTACHMENT NO. 5
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
(Space Above for Recorder's Use)
DEED OF TRUST WITH ASSIGNMENT OF RENTS
Deed of trust made on , 1993, by HERITAGE
OFFICE BUILDING, LTD. , hereinafter called "Trustor, " whose address
is , to FIRST AMERICAN TITLE COMPANY,
hereinafter referred to as "Trustee", whose business address is 323
Court Street, San Bernardino, California 92401, in favor of the
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, hereinafter
referred to as "Beneficiary", whose business address is 201 North
"E" Street, Third Floor, San Bernardino, California 92401.
Trustor irrevocably grants, transfers, and assigns to
Trustee in trust, with power of sale, all that property, including
all easements and rights of way used in connection therewith or as
a means of access thereto, in the City of San Bernardino, County of
San Bernardino, State of California, described as follows:
That certain property located in the City of
San Bernardino, County of San Bernardino, State of California, more
particularly described as:
SEE ATTACHMENT NO. 1
together with the rents, issues and profits thereof, subject
however to the right reserved by Trustor in Paragraph B-16 hereof
to collect and apply such rents, issues and profits, prior to any
default hereunder; for the purpose of securing performance in a
timely manner of all of Trustor's obligations under that certain
Owner Participation Agreement dated as of (the "OPA")
and performance of each agreement to Trustor incorporated herein by
reference or contained herein.
A. To protect the security of this Deed of Trust, Trustor agrees:
1. To maintain the property in good condition and
repair; not to remove or demolish any building or improvement
thereon; to complete promptly in workmanlike manner any improvement
ATT. 5 - Page 1 �r
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hereafter constructed thereon and to restore promptly in
workmanlike manner any improvement thereon that is damaged or
destroyed, and to pay when due all costs incurred therefor or* in
connection therewith; to comply with all laws, ordinances,
regulations, covenants, conditions and restrictions affecting the
property; not to commit or permit any waste thereof or any act upon
the property in violation of law or of covenants, conditions or
restrictions affecting the property.
2 . To appear in and defend any action or proceeding
purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; and also, if at any time Beneficiary or
Trustee is a party to or appears in any such action or proceeding,
or in any action or proceeding to enforce any obligation hereby
secured, to pay all cost and expenses paid or incurred by them or
either of them in connection therewith, including, but not limited
to, cost of evidence of title and attorneys ' fees in a reasonable
SUM.
3. To pay (a) at least ten (10) days before
delinquency, all taxes and assessments affecting the property, all
assessment upon water company stock, and all rents, assessments and
charges for water appurtenant to or used in connection with the
property; (b) when due, all encumbrances, charges and liens, with
interest, on the property or any part thereof, which appear to be
prior or superior hereto; and (c) all costs, fees and expenses of
this trust.
4. If Trustor fails to make any payment or to do any
act as herein provided, then Beneficiary or Trustee (but without
obligation so to do, and with or without notice to or demand upon
Trustor, and without releasing Trustor from any obligation hereof)
may (a) make or do the same in such manner and to such extent as
either deems necessary to protect the security hereof, Beneficiary
or Trustee being authorized to enter upon the property for such
purpose; (b) appear in or commence any action or proceeding
purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; (c) pay, purchase, contest, or compromise
any encumbrance, charge or lien that, in the judgment of either,
appears to be superior hereto; and in exercising any such power,
Beneficiary or Trustee may incur necessary expenses, including
reasonable attorneys ' fees.
5. To pay immediately and without demand all sums
expended hereunder by Beneficiary or Trustee, with interest from
date of expenditure at the annual rate of five percentage points
over Bank of America's published prime rate.
B. It is mutually agreed that:
1. Any award of damages made in connection with the
condemnation for public use of or injury to the property or any
part thereof is hereby assigned and shall be paid to Beneficiary,
who may apply or release such moneys received therefor upon any
ATT. 5 - Page 2 �y
indebtedness secured hereby in such order as Beneficiary
determines, or at the option of Beneficiary the entire amount so
received or any part thereof may be released to Trustor. Such
application or release shall not cure or waive any default or
notice of default hereunder or invalidate any act done pursuant to
such notice.
2. The acceptance by Beneficiary of any payment less
than the amount then due shall be deemed an acceptance on account
only and shall not constitute a waiver of the obligation of Trustor
to pay the entire sum then due or of Beneficiary's right either to
require prompt payment of all sums then due or to declare default.
The acceptance of payment of any sum secured hereby after its due
date will not waive the right of Beneficiary either to require
prompt payment when due of all other sums so secured or to declare
default for failure so to pay. No waiver of any default shall be
a waiver of any preceding or succeeding default of any kind.
3 . At any time upon the occurrence of a default,
without liability therefor and with or without notice, upon written
request of Beneficiary and presentation of this deed for
endorsement, and without effecting the personal liability of any
person, Trustee may reconvey any part of the property, consent to
the making of any map or plat thereof, join in granting any
easement or join in any extension agreement or any agreement
subordinating the lien or charge thereof.
4. Upon written request of Beneficiary, surrender of
this deed to Trustee for cancellation and retention, and payment of
its fees, Trustee shall reconvey, without warranty the property
then held hereunder. The recitals in such reconveyance shall be
conclusive proof of the truthfulness thereof. The grantee may be
designated in such reconveyance as "the person or persons legally
entitled thereto. "
5. Trustor may give such notice to Beneficiary at any
time before there is a Trustee's sale of the property. At any time
Trustor is in default in payments to be made to Beneficiary
hereunder, any amounts paid to and received by Beneficiary for
execution of releases pursuant to the terms of this paragraph after
notice of default and election to sell has been recorded shall not,
unless the requirements of Section 2924c of the Civil Code are
fully met by or on behalf of Trustor, waive the right of
Beneficiary to continue its plans to have the property sold, nor
shall they have any effect on the exercise by Beneficiary of the
acceleration privilege contained herein, except to entitle the
person effecting such payment to the release of the property for
which the release amount was paid, and insofar as Beneficiary is
concerned, to constitute a credit against the secured debt.
6. If Trustor or any subsequent owner of the property
covered hereby shall occupy the property, or any part thereof,
after any default, Trustor or such owner shall pay to Beneficiary
in advance on the first day of each month a reasonable rental for
the premises so occupied. On failure to pay such reasonable
ATT. 5 - Page 3
i1
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rental, Trustor or such owner may be removed from the premises by
summary dispossession proceedings or by any other appropriate
action or proceeding.
7. If default is made in performance of any agreement
hereby secured, then Beneficiary, with or without notice to
Trustor, may institute suit for the foreclosure of this deed, or by
delivering to Trustee a written declaration of default and demand
for sale, as well as a written notice of default and of election to
cause the property to be sold, which notice Trustee shall cause to
be filed for record. If such declaration is delivered to Trustee,
Beneficiary shall deposit with Trustee this deed, and all documents
evidencing expenditures secured hereby.
8 . After the time then required by law has elapsed
after recordation of such notice of default, and notice of sale
having been given as then required by law, Trustee, with or without
demand on Trustor, shall sell the property at the time and place
fixed in the notice of sale, either as a whole or in separate
parcels and in such order as Trustee determines, at public auction,
to the highest bidder, for cash in lawful money of the United
States, payable at the time of sale. Trustee may postpone from
time to time sale of all or any portion of the property by public
announcement at the time and place of sale originally fixed or at
the last preceding postponed time. Trustee shall deliver to the
purchaser its deed conveying the property sold, but without any
covenant or warranty, express or implied. The recitals in such
deed of any matters or facts shall be conclusive proof of the
truthfulness thereof. Trustor, Trustee, Beneficiary or any other
person may purchase at the sale.
9. After deducting all costs, fees and expenses of
Trustee and of this trust, including cost of evidence of title and
reasonable attorneys' fees in connection with sale, Trustee shall
apply the proceeds of sale to payment of (a) all sums expended
under the terms hereof and not theretofore repaid, with accrued
interest at five percentage points over Bank of America's published
prime rate per annum, and (b) all other sums then secured hereby in
such order as Beneficiary, in the exercise of its sole discretion,
directs. The remainder, if any, shall be paid to the person or
persons legally entitled thereto.
10. Before Trustee's sale, Beneficiary may rescind such
notices of default and of election to cause the property to be sold
by delivering to Trustee a written notice of rescission, which
notice, when recorded, shall cancel any prior declaration of
default, demand for sale and acceleration of maturity. The
exercise of such a right of rescission shall not constitute a
waiver of any default then existing or subsequently occurring, or
impair the right of Beneficiary to deliver to Trustee other
declarations of default and demands for sale or notices of default
and of election to cause the property to be sold, or otherwise
affect any provision of the secured note or of this deed or any of
the rights, obligations or remedies of Beneficiary or Trustee
hereunder.
ATT. 5 - Page 4
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11. Beneficiary may, from time to time as provided by
statute, or by a writing signed and acknowledged by him and
recorded in the office of the county recorder of the county in
which the land or such party thereof as is then affected by this
deed of trust is situated, appoint another trustee in stead and of
Trustee herein named; and thereupon, the Trustee herein named shall
be discharged, and the trustee so appointed shall be substituted as
Trustee hereunder with the same effect as if originally named
Trustee herein.
12 . If two or more persons are designated as Trustee
herein, any or all powers granted herein to Trustee may be
exercised by any of such persons if the other person or persons is
unable, for any reason, to act. Any recital of such inability in
any instrument executed by any of such persons shall be conclusive
against Trustor, his heirs and assigns.
13. All leases of any structures on the Site which
utilize the Project as defined in the OPA, now or hereafter
affecting the property are hereby assigned and transferred to
Beneficiary by Trustor. Trustor hereby covenants that none of such
leases will be modified or terminated without the written consent
of Beneficiary.
14. If a default is made in the performance of any
agreement hereby secured, Trustor when requested to do so, shall
give such further written assignments of rents, royalties, issues
and profits; of all security for the performance of leases; and of
all money payable under any option to purchase, and shall give
executed originals of all leases, now or hereafter on or affecting
the property.
15. Trustor reserves the right, prior to any default in
payment of any indebtedness or performance of any obligation
secured hereby, to collect all such rents, royalties, issues and
profits, as but not before they become due. Upon any such default,
Trustor's right to collect such moneys shall cease, not only as to
amounts accruing thereafter, but also as to amounts then accrued
and unpaid. In the event of default, Beneficiary, with or without
notice and without regard to the adequacy of security for the
indebtedness hereby secured, either in person or by agent, or by a
receiver to be appointed by the court, (a) may enter upon and take
possession of the property at any time and manage and control it in
Beneficiary's discretion, and (b) with or without taking
possession, may sue for or otherwise collect the rents, issues and
profits thereof, whether past due or coming due thereafter, and
apply the same, less costs and expenses of operation and
collection, including reasonable attorneys ' fees, upon any
obligation secured hereby and in such order as Beneficiary
determines. None of the aforesaid acts shall cure or waive any
default hereunder or invalidate any act done pursuant to such
notice. Beneficiary shall not be required to act diligently in the
care or management of the property or in collecting any rents,
royalties or other profits that it is hereby authorized to collect,
and shall be accountable only for sums actually received.
ATT. 5 - Page 5
16. Without affecting the liability of Trustor or of any
other party now or hereafter bound by the terms hereof, from time
to time and with or without notice, Beneficiary may release any
person now or hereafter liable for performance of such obligation,
and may extend the time for payment or performance, accept
additional security, and alter, substitute or release any security.
17. In any judicial action brought to foreclose this
deed or to enforce any right of Beneficiary or of Trustee
hereunder, Trustor shall pay to Beneficiary and to Trustee
attorneys ' fees in a reasonable sum, to be fixed by the court.
18. No remedy hereby given to Beneficiary or Trustee is
exclusive of any other remedy hereunder or under any present or
future law.
19. The pleading of any statute of limitations as a
defense to any and all obligations secured by this deed is hereby
waived, to the full extent permissible by law.
20. Trustor shall, upon request made by Beneficiary,
furnish the Beneficiary with annual statements covering the
operations of the property.
21. Beneficiary may collect a "late charge" not to
exceed an amount equal to five percent (5%) on the amount past due
and remaining unpaid on any installment that is not paid within ten
(10) days from the due date thereof, to cover the extra expense
involved in handling delinquent payments.
22. This deed applies to, inures to the benefit of and
binds all parties hereto, their heirs, legatees, devisees,
administrators, executors, successors, successors in interest, and
assigns. The term "Beneficiary" means the owner and holder,
including pledgees, of the Agreement secured hereby, whether or not
named as Beneficiary herein. In this deed, whenever the context so
requires, the masculine gender includes the feminine and neuter,
and the singular number includes the plural, and all obligations of
each Trustor hereunder are joint and several.
23 . Trustee accepts this trust when this deed, duly
executed and acknowledged, is made a public record as provided by
law. Trustee is not obligated to notify any party hereto of
pending sale under any other deed of trust or of any action or
proceeding in which Trustor, Beneficiary or Trustee is a party
unless brought by Trustee.
Trustor requests that a copy of notice of default and of
any notice of sale hereunder shall be mailed to him at the address
set out opposite his name, immediately below.
ATT. 5 - Page 6
a
MAILING ADDRESSES FOR NOTICES:
Heritage Office Building, Ltd.
as Trustor:
1731-A Orange Tree Lane, Redlands, California 92374
Attn: Russell Hatle
Executed at San Bernardino, California, on the date first
above written.
Heritage Office Building, Ltd. ,
a California Limited Partnership
By:
By: Russell Hatle
Title: General Partner
ATT. 5 - Page 7
ATTACHMENT NO. 1 TO DEED OF TRUST
ATT. 5 - Page 8
ATTACHMENT NO. 6
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
(Space above for Recorder. ]
CERTIFICATE OF COMPLETION FOR
CONSTRUCTION AND DEVELOPMENT
WHEREAS, pursuant to that Certain Owner's Participation
Agreement entered into between the Agency, and Heritage Office
Building, Ltd. ("Participant") dated as of ("the
Agreement") , relating to that certain real property described on
Exhibit 1, attached hereto and incorporated herein, the Participant
is entitled to the issuance of a Certificate of Completion upon the
completion of those improvements required by the Agreement -to be
developed by the Participant (the "Participant Improvements") ; and
WHEREAS, such certificate shall be conclusive
determination of satisfactory completion of the construction
required by the Agreement; and
WHEREAS, the Agency has conclusively determined that the
construction on the above described real property required by the
Agreement has been satisfactorily completed;
NOW, THEREFORE,
1. The Agency does hereby certify that the construction
of the Project has been fully and satisfactorily performed and
completed.
2 . Nothing contained in this instrument shall modify in
any other way other provisions of the the Agreement. All executory
obligations of the Participant pursuant to the Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the Agency has executed this
certificate this day of , 1993 .
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
By:
Executive Director
ATT. 6 - Page 1
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STATE OF CALIFORNIA )
COUNTY OF ) ss.
On before me,
personally appeared
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacity(ies) , and that by his/her/their signature(s) on the
instrument the person(s) , or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal. (Seal)
Signature
Executed at San Bernardino, California, on the date first
above written.
Heritage Office Building, Ltd. ,
as Trustor
By:
Title:
ATT. 6 - Page 2
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EXHIBIT "1" TO CERTIFICATE OF COMPLETION
ATT. 6 - Page 3
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