HomeMy WebLinkAbout08- Development Department DEVELOPMENT DEPARTMENT
OF THE CITY OF SAN BERNARDINO
REQUEST FOR COMMISSION/COUNCIL ACTION
FROM: KENNETH J. HENDERSON SUBJECT: STANDARD MORTGAGE
Executive Director COMPANY, INC., LOAN
GUARANTEE
DATE: March 30, 1994
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Synoasis of Previous Commission/Council/Committee Action(s):
On March 10, 1994, the Redevelopment Committee recommended that the Community Development
Commission approve a $1.7 million loan guarantee for Standard Mortgage Company, Inc., for purposes of
acquiring a working capital loan; said loan guarantee to be adequately collateralized with real estate.
Synopsis Continued to Next Page...
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Recommended Motion(s):
(Community Development Commission)
MOTION A: RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE
CITY OF SAN BERNARDINO, CALIFORNIA,APPROVING A CERTAIN OWNER
PARTICIPATION AGREEMENT BY AND BETWEEN THE REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO AND STANDARD MORTGAGE
CO., INC.
Motions Continued to Next Palle...
T—d— A,((It*14KI
Administrator KENNETH J. HENDER ON
Executive Director
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Contact Person(s): Kenneth J. Henderson/John Wood Phone: 5081
Project Area(s): All Ward(s): Seven (7)
Supporting Data Attached: Staff Report;
FUNDING REQUIREMENTS: Amount: Loan Guarantee
$0,000,000 Source: Riverside National Bank Loan
Budget Authority: Approved March 21, 1994
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Commission/Council Notes:
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KJH:JMW:lag:04-01-04.cdc COMMISSION MEETING AGENDA
MEETING DATE: 04/04/1994
Agenda Item Number: _
REQUEST FOR COMMISSION/COUNCIL/COMMITTEE ACTION(S)
Standard Mortgage Company, Inc., Loan Guarantee
March 30, 1994
Page Number -2-
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Synopsis of Previous Commission/Council/Committee Action(s):
On March 21, 1994, the Community Development Commission approved a $1.7 million loan
guarantee for Standard Mortgage Company, Inc., for the purpose of obtaining a working
capital loan, conditioned upon the provision of adequate real estate collateral.
Recommended Motion(s) Continued:
(Community Development Commission)
MOTION B: That the Community Development Commission authorize the Chairman
and Executive Director to execute implementing documentation in
connection with a $1.7 million loan guarantee for Standard Mortgage
Company, Inc.
i
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KJH:JMW:1ag:04-01-04.cdc COMMISSION MEETING AGENDA
MEETING DATE: 04/04/1994
Agenda Item Number: _
DEVELOPMENT DEPARTMENT
STAFF REPORT
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Standard Mortgage Company, Inc., Loan Guarantee
The purpose of this item is two-fold; 1) to adopt a resolution (copy attached) approving an
Owner Participation Agreement (draft copy attached) with Standard Mortgage Company, Inc.,
covering a $1.7 million loan guarantee for working capital financing. This matter was
presented, discussed in detail and approved at the Commission's March 21, 1994 meeting; and
2) to authorize the Chairman and Executive Director of the Redevelopment Agency to execute
the Owner Participation Agreement, the Loan Guaranty and any other documentation
necessary for the implementation of the subject $1.7 million loan guarantee.
Staff recommends adoption of the resolution and form motion.
OW4
KENNETH J. H NDERSON, Executive Director
Development Department
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KJH:JMW:1ag:04-01-04.cdc COMMISSION MEETING AGENDA
MEETING DATE: 04/04/1994
7
Agenda Item Number:
MRR 30 I'94 12:30PM P.2
COMMMITY DEVELOPMENT COMMISSION OF THE
CITY OF SAN BERNARDINO, CALIFORNIA
2 �
3
4 April 5, 1994
5 Item: RESOLUTION OF THE COMMUNITY DEVELOPMENT
s COMMISSION OF THE CITY OF SAN BERNARDINO,
CALIFORNIA, APPROVING A CERTAIN OWNER
7 PARTICIPATION AGREEMENT BY AND BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN
$ BERNARDINO AND STANDARD MORTGAGE CO. , INC.
8 � `
ACti= VY 1Jt.L: S . C [a 2i CX• • ... r 3..... ... 0. _..
10 be -Taken: Adopt Resolution
11 Approve Exhibit "A"
12 Certified copy of Resolution to be returned to Sabo & Green, A
13 Professional Corporation.
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MRR 30'94 12:30PM P.3
1 •Rgs6ttTi6N No.
2 RESOLUTION OF THE COMMUNITY DEVELOPMENT
3 COMMISSION OF THE CITY OF SAN BERNARDINO,
CALIFORNIA, APPROVING A CERTAIN OWNER
4 PARTICIPATION AGREEMENT BY AND BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN
5 BERNARDINO AND STANDARD MORTGAGE CO. , INC.
6 WHEREAS, the Redevelopment Agency of the City of San
7 Bernardino (the "Agency") , is a redevelopment agency, a public
8 body, corporate and politic of the State of California, organized
9 and existing pursuant to the Community Redevelopment Law (part 1
10 -- - .. .
of Division 24) commencing with Section 33000 of the Health and
11 Safety Code of the State of California (the "Act") ; and
12
13 WHEREAS, the City of San Bernardino and the Agency have
14 previously approved and adopted the Redevelopment Plan (the
16 "Redevelopment Plan") for the Agency's Central City North
16 Redevelopment Project Area (the "Project Area") ; and
17
18 WHEREAS, in connection with the -implementation of the
19 Redevelopment Plan, the Agency has received a request from
20 Standard Mortgage Co. , Inc. (the "participating Owner") , to
21 provide a guarantee (the "Guarantee") to a certain loan in order
22 that the Participating Owner may continue its operations within
23 the City of San Bernardino; and
24
25 WHEREAS, the Agency deems it desirable to assist the
26 Participating Owner by providing said Guarantee; and
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MAR 30'94 12:31PM P.4
1 WHEREAS, the amount of the Agency assistance shall be
2 in an amount not to exceed $1,700,000 and shall be repaid upon
8 the terms and conditions as provided in a certain Owner
4 Participation Agreement (the "Agreement') ; and
5
6 WHEREAS, the assistance to the participating owner will
7 contribute to (i) retaining jobs, (ii) maintaining economic
8 growth from the continued provision of mortgage loans by the
0 Participating Owner, and (iii) prevent the spread of blight which
10 would be -caused by additiar}al closures of the Participating
11 Owner'a' locations within the City of San Bernardino; and
12
18 WHEREAS, the Agency at this time deems it desirable to
14 Approve the Guarantee and that certain Agreement by and between
15 the Agency and the Participating Owner, a copy of which is
16 attached hereto as Exhibit "A" and incorporated herein by this
17 reference which sets forth the terms of the Agency's assistance.
18
NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION
19
20 ACTING ON BEHALF OF THE REDEVELOPMENT AGENCY OF THE CITY OF
21 SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER AS
22 FOLLOWS:
2�
24 section 1. The Agency hereby finds and determines
that the provision of the Guarantee will assist redevelopment
26 within the Project Area.
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MAR 3 '
I I 94 12:31PM P.5
1 section 2. The Agency hereby approves the Guarantee
2 and the Agreement in substantially the form attached hereto, with
any changes as may be authorized by the Executive Director upon
4 recommendation of Agency Counsel.
5
6 Section 3. The Agency hereby authorizes the
7 Chairman, secretary, Executive Director and/or Project Manager to
8 execute the Agreement, the Guarantee and any and all related
9 documents necessary to carry out the transaction contemplated
10 thereby an bahalf •of. the Agency with any such changes as may be
11 approved by the Executive Director of the Agency and Agency
12 Counsel.
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MRR 30 '94 12:32PM P.6
1 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF
SAN BERNARDINO, CALIFORNIA, APPROVING A CERTAIN OWNER
2 PARTICIPATION AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY
OF THIS CITY OF SAN BERNARDINO AND STANDARD, MORTGAGE CO. , INC.
4 Section 4. The findings and determinations herein
5 shall be final and conclusive. This Resolution shall take effect
6 upon the date of its adoption.
7 I HEREBY CERTIFY that the foregoing Resolution was duly
$ adopted by the Community Development Commission of the City of
9 San Bernardino at a meeting
10 thereof, held on the day of
11 "19940 'by the following vote, to wit:
12 commission Msmbare: YE� 5 ARCTAIN
13 NEGRETE
14 CURLIN
HERNANDEZ
15 OBERHELMAN
DEVLIN
16 POPE-LUDLAM
MILLER
17
18 Secretary
19 The foregoing resolution is hereby approved this
day of , 1994.
20
21 Tom Minor, Chairman
Community Development
22 commission -of the
City of San Bernardino
23 Approved as to
form and legal content:
24 By:
25 Agency Counsel
AQ s�o�000t�noc�7ss
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MAR 30 '94 12:32PM P.7
1 STATE OF CALIFORNYA
COUNTY OF SAN BERNARDINO ) as
2 - CITY OF SAN BERNARDINO )
3 I, Secretary of the Community
Development Condaission -of the City of San Bernardino, DO HEREBY
4 CERTIFY that the foregoing and attached copy of Community
Development Co=ission of the City of San Bernardino Resolution
8 No. is a full, true and correct copy of that now on
file in this office.
6 IN WITNESS WHEREOF, Y 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
$ , 1994.
9
10 Secretary of the
Community Development Commission
11 of the City of San Bernardino
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MAR 30 '94 12:29PM P.1
SASo & GREEN
A P20FAMOXAL CORPORATION
ATMF4=8 AT LAW
SUIM400
6370 CANDOA AVBNU13
WOOMIMM E11.1-2,CALUR)MR91367
(818)704-0195
Fax Number(818)704-4729
FAX COVER SHEET
Date: March 30, 1994 File No. SBEO 0001
To: John Wood
Economic Development Dept. of
the City of San Bernardino
From: Alexis G. Crump
Telephone Number: (909) 384-5081 Fax: (909) 888-9413
Number of Pages including this Cover:
If you do not receive all pages or to
request confirmation, please contact: Laura
Comments:
Please see attached per your request. Thank you.
This faaainwla is Intended only for the two of the perwen or entity to which it 1w addressed. It may contain nfonnatian that is privileged of
confidential. if you have received this facsimile h wror,pleas notify us immedet*.
SBS0\0001\0PA\STD.MTG
3\28\94 400 jrf
RECORDING REQUESTED BY:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
201 North "E" Street, Third Floor
San Bernardino, CA 92401 '
WHEN RECORDED RETURN TO: Eo F T
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
201 North "E" Street, Third Floor
San Bernardino, CA 92401
(Space Above for Recorder's Use)
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
OWNER PARTICIPATION AGREEMENT
By and Between
REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO
and
STANDARD MORTGAGE CO. , INC.
TABLE OF CONTENTS
Page
I. [100] SUBJECT OF AGREEMENT
A. [101] Purpose of Agreement . . . . . . . . . . 1
B. [102] The Redevelopment Plan . . . . . . . . . . 2
C. [103] Participant's Main Office . . . . . . . . . 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 Areas . . . . . . . 4
II. [200] AGENCY ASSISTANCE
A. [201] Agency Guarantee . . . . . . . . . . . . . 5
B. [202] Bodily Injury and Property Damage Insurance 6
C. [203] Prohibition Against Transfer of the Security
and Assignment of Agreement . . . . . . . . 7
D. [204] Agency Guarantee; Deeds of Trust
Personal Guarantee of Participant
Obligation . . . . . . . . . . . . . . . . 8
1. [205] Agency Guarantee . . . . . . . . . . . 8
2 . [206] Deed of Trust . . . . . . . . . 8
3 . [207] Personal Guarantee of Participant
Obligation . . . . . . . . . . . . 9
4. [208] Payment of Outstanding Taxes,
Assessments and Fees on the Security . 9
5. [209] Payment of Bank Fees . . . . . . . . . 9
E. [210] Right of Agency to Satisfy Liens
on the Security . . . . . . . . . . . . . . 9
F. [211] Release of Deeds of Trust . . . . . . . . . 9
G. [212] Maintenance of the Security . . . . . . . 10
III. [300] GENERAL PROVISIONS
A. [301] Notices, Demands and Communications
Between the Parties . . . . . 10
B. [302] Conflicts of Interest; Nonliability . . . 11
C. [303] Enforced Delay; Extension of Times
of Performance . . . . . . . . . . . 12
D. [304] Inspection of Books and Records . . . . . 12
IV. [400] DEFAULTS AND REMEDIES
A. [401] Defaults - General . . . . . . . . . . . 13
B. [402] Legal Actions . . . . . . . . . . . . . . 13
(i)
1. [403] Institution of Legal Actions . . . . 13
2. [404] Applicable Law . . . . . . . . . 14
3. [405] Acceptance of Service of Process . . 14
C. [406] Rights and Remedies are Cumulative . . . 14
D. [407] Inaction Not a Waiver of Default 14
E. [408] Remedies . . . . . . . . . . . . . . . . 15
1. [4 09] Damages . . . . . . . . . . . . . . 15
V. [500] SPECIAL PROVISIONS
A. [501] Submission of Documents to Agency
for Approval . . . . . . . . . . . . 15
B. [502] Successors in Interest . . . . . . . . . 16
VI. [600] ENTIRE AGREEMENT, WAIVERS . . . . . . . . . . 16
VII. [700] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
A. [901] Time for Acceptance . . . . . . . . . . . 17
ATTACHMENT NO. 1 - LEGAL DESCRIPTION OF THE SITE
ATTACHMENT NO. 2 - GUARANTEE
ATTACHMENT NO. 3 - DEED OF TRUST WITH ASSIGNMENT OF RENTS
ATTACHMENT NO. 4 - PERSONAL GUARANTEE ON BEHALF OF STANDARD
MORTGAGE CO. , INC. FOR OBLIGATION UNDER OWNER
PARTICIPATION AGREEMENT
(ii)
FJ {6iW: Y
SBF.0\0001\0PAWD.MTO
3\28\94 400 jif
OWNER PARTICIPATION AGREEMENT
THIS AGREEMENT IS ENTERED INTO this day of
1994, by and between the REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNA/R�DIN O (the "Agency") and STANDARD MORTGAGE
COMPANY, INC. , a ��( Y , < COMPANY (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 c,= (V (the
"Redevelopment Plan") by providing for Agency assistance to
Participant in connection with the continued operation of
Participant in the City of San Bernardino in order to retain jobs
and maintain economic growth within the community and prevent the
spread of blight caused by additional closures of the Participant's
locations throughout the City and within the Agency's project areas
(the "Project Areas") . The assistance provided by 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] Participant's Main Office
Participant's main office is generally located at 375
West Seventh Street, San Bernardino, California 92401.
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 sea. )
The principal office of the Agency is located at 201 North "E"
Str et, - 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 assignee
of or successor to their rights, powers and responsibilities.
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2. [106] The Participant 4
1 '
The principal office and mailing address of the
Participant for purposes of this Agreement is 375 West Seventh
Street, San Bernardino, California 92401, Attn: Craig Dyberg.
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 which discretion shall be
exercised reasonably and in good faith. 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) any guarantee provided to assure the performance of the
Participant's obligations under this Agreement shall remain in full
force and effect.
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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 Guarantee (as hereinafter defined) applies.
4. (108] Benefit to Project Areas
Agency has determined that assisting to assure the
continued business activity of the Participant in the Project Areas
in accordance with this Agreement will curtail the spread of
blight, provide benefits to the Project Areas through the continued
business activity of Participant, maintain property values and jobs
in the community and maintain economic growth through the provision
of mortgage loans by the Participant.
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II. [200] AGENCY ASSISTANCE
A. [201] Aaency Guarantee
Agency agrees to guarantee (the "Guarantee") repayment by
Participant of a certain loan in favor of Riverside National Bank,
or such other lender as the Agency may approve in writing, which
loan is to be in a principal amount equal to One Million Seven
Hundred Thousand Dollars ($1,700,000) (hereinafter referred to as
the "Participant Loan") , as follows: The proceeds of the
Participant Loan are to be used by Participant solely for working
capital of Participant and shall not be used, nor shall other funds
of the Participant be used in lieu of loan proceeds, to pay non-
business related debt or expenses including but not limited to debt
or expenses for investments or the operation of other businesses.
The Participant shall provide quarterly statements to the Agency
which evidence that neither the loan proceeds nor equal amounts of
other funds are being used in violation of this provision. The
Guarantee shall be reflected in a certain Guarantee 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 Guarantee, the Participant shall
cause the continued operation of the Participant and shall execute
the Deeds of Trust conveying title to certain property owned by
71
Participant (as listed in Exhibit " 37 " hereto) in favor of the
Agency as provided in Section 314 hereof.
The Agency's obligation with respect to the execution and
provision of the Guarantee shall become binding only at such time
5
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as the Agency has received an executed original of this Agreement
and the Deeds of Trust conveying title` to the Security and other
security. �, "\ ' �` : - \ k !) ?� _
B. (202] 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 Guarantee.
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
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employees as additional insureds under the policy. The certificate
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.
C. [203] Prohibition Against Transfer of the Security
and Assignment of Agreement
Prior to expiration of the Guarantee, Participant shall
not, except as permitted by this Agreement, without the prior
written approval of Agency, which approval shall not be
unreasonably withheld, make any total or partial sale, transfer,
conveyance, assignment or lease of the whole or any part of the
property securing this Agreement, unless such property is replaced
by property having the same or higher value.
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D. (204] Agency Guarantee; Deeds of Trust; Personal
Guarantee of Participant Obligation
1. (205] Agency Guarantee
The Agency shall execute the Agency Gauranty in
substantially the form as attached hereto as Attachment No. 2,
which Agency Guarantee shall be in favor of the lender described
therein. The Agency's obligation to guarantee the loan to the
Participant shall be limited to an amount egi7l,,to One Million .,
1 A41
Seven Hundred Thousand Dollars ($1,700,000)/ In consideration for
providing the Agency Guarantee, the Participant shall pay a
guarantee fee of one and one-half percent (1.5%) of the Note
secured by the Agency Guarantee.
2. (206] Deed of Trust
In consideration for the Agency's execution and provision
of the Agency Guarantee, Participant shall execute the Deeds of
Trust to the property listed in Attachment No. - , hereto and
incorporated herein (the "Security") in the forms contained in
Attachment No. 5, attached hereto and incorporated herein by this
reference. Participant shall cause to be prepared, and shall pay
all costs and fees- in connection with issuance of, a title policy
for the Security, abceptable to the Agency. Said Deeds of Trust
may be subordinated\to such financing as the Agency may later
approve in writing. \ /
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3 . [207] Personal Guarantee of Participant
Obligation
In consideration for the Agency's execution and provision
of the Agency Guarantee on behalf of Participant,
as individual, shall execute a
personal guarantee in the form of Attachment No. 7, attached hereto
and incorporated herein by this reference.
4. [208] Payment of Outstanding Taxes. Assessments
and Fees on the Security
Participant shall cause all outstanding taxes and
assessments on the Security„ to be.-paid promptly. /
��Y� r_
5. 209] �C� Payment of Bank Fees 11
Participant shall pay all loan origination and
continuation fees and any and all-'other fees associated with the
v,t
loan,,. K {I I f. 14-1--t: 1
E. [210] Right of Agency to Satisfy Liens On The
Security
The Agency shall have the right but not the obligation to
satisfy any liens or encumbrances on the Security and to seek
indemnification therefor from the Participant.
F. [211] Release of Deeds of Trust
Upon repayment in full of all sums owed under the
Participant Loan and the expiration of the Guarantee, Agency agrees
to reconvey the Deeds of Trust. Upon the recording of a
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reconveyance of a full Deed of Trust, any party then owning or
thereafter purchasing, leasing or otherwise acquiring any interest
in the Security shall not, as a result of such ownership, lease or
acquisition, incur any obligation or liability under this
Agreement.
Participant agrees to repay the Participant Loan in full
at such times and as provided in the applicable Participant Loan
documents. 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 Deeds of Trust, and/or to exercise any other
remedies available under this Agreement, the Deeds of Trust or at
law or in equity.
G. [212] Maintenance of the Security
Participant shall maintain the Security and shall keep
the Security free from any accumulation of debris or waste
materials.
III. [300] GENERAL PROVISIONS
A. [301] 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
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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 301.
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. [302] 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
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.
- 11 -
C. [303) 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
under this Agreement may also be extended in writing by the mutual
agreement of Agency and Participant.
D. (304) Inspection of Books and Records
Agency has the right at all reasonable times and upon
reasonable notice to inspect the books and records of Participant
pertaining to the Security and the loan as pertinent to the
purposes of this Agreement. Participant has the right at all
- 12 - f
reasonable times to inspect the public records of Agency pertaining
to the Guarantee as pertinent to the purposes of the Agreement.
IV. [400] DEFAULTS AND REMEDIES
A. [401] Defaults - - General
Subject to the extensions of time set forth in
Section 303, 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
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. [402] Legal Actions
1. [403] 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
- 13 - i
s
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. [404] Applicable Law
The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
3 . [405] 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.
C. [406] 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. [407] 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
- 14 - f
• i
proceedings which it may deem necessary to protect, assert or
enforce any such rights or remedies.
E. [408] Remedies
1. [409] 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.
V. [500] SPECIAL PROVISIONS
A. [501] 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.
- 15 - r>
B. (502] 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.
VI. (600] ENTIRE AGREEMENT, WAIVERS
This Agreement is 'executed in four (4) duplicate
originals, each of which is deemed tc?jbg a original. This
Agreement includes Attachments 1 through .: , which together with
this Agreement constitute the entire undd sr, a ding 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.
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.
- 16 - elp
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.
VII. [700] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
A. [701] 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.
- 17 -
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
ATTEST:
By:
Agency Secretary 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"
STANDARD MORTGAGE CO. , INC.
v By: RICHARD STEILER
,\ ATTEST:
By:
Secretary
- 18 -
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
i
j
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
i
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
ATT. 1 - Page 1
' l
ATTACHMENT NO. 2
GUARANTEE
The REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO,
CALIFORNIA (the "Agency") hereby guaranties to Riverside National
Bank ("Lender") , on the terms and conditions set forth hereinafter,
the obligation of STANDARD MORTGAGE CO. , INC. ("Debtor") , as more
specifically described hereinafter. This Guarantee is subject to
the following:
1. The Agency's obligations to Lender are solely with
respect to the debt incurred by Debtor by way of the promissory
note and deed of trust entered into by and between Lender and
Debtor, a true and correct copy of which is attached to this
Guarantee as Exhibit "A" (the "Debt") . The Agency's obligation
hereunder shall not extend to any other obligation of Debtor to
Lender, or any third party, whatsoever.
-r()7-�01 JL;U
2. ` The amount of the Agency's obligations to Lender
shall not ex&,fed One Million One- Hundred Twenty-Five- Thousand
Dollars ($1,125-1000),, less any payments made on account thereof by
Debtor or any other party. Any obligation of the Agency hereunder
shall cease upon payment in full of all principal and interest due
under said note, regardless of the source of said payment.
3. The obligations of the Agency under this Guarantee
do not extend to any prior, contemporaneous or future debt owed by
Debtor, to Lender.
4. Lender may not, without the prior written consent of
the Agency, enter into any modification, amendment, waiver or other
change in the terms, amount or conditions of the Debt, nor renew,
extend, postpone or accelerate the time for payment or otherwise
change the terms of the Debt, nor release any security held
therefor.
5. Lender covenants that it will diligently exercise
all rights accorded to it under the terms of Exhibit "A" or any
collateral or security agreements held by Lender in connection
therewith.
6. Lender expressly waives any right to look to any
asset of the Agency which may be in the possession of the Lender at
any time, and agrees solely to exercise its rights under this
agreement in accordance with the terms hereof.
7. In the event of any default by Debtor (as defined in
Exhibit "A") , Lender agrees to provide the Agency with notice
thereof within thirty (30) days of the event of said default, so as
to enable the Agency to contact the Debtor and seek to obtain
compliance by the Debtor with the terms of the Debt, within ninety
(90) days of notification.
ATT. 2 - Page 1 /,'
8. The Agency reserves all rights of subrogation or
indemnification against the Debtor with respect to any and all sums
which may be paid by the Agency on behalf of the Debtor under the
terms of this agreement. After any and all conditions precedent
hereunder to the Agency's obligations hereunder have been
satisfied, Lender may make written demand upon the Agency for
payment of any unpaid portion of the Debt and the Agency shall make
or cause to be made payment thereof in full within forty-five (45)
days of receipt of such written demand.
9. Notwithstanding any other provision of this
Guarantee to the contrary, the total obligation of the Agency to
Lender under the terms hereof shall not exceed the sum of
$1,700,000.
10. The Agency may not terminate its obligations under
the provisions of this Guarantee until such time as the Debt has
been paid in full or the amount then owed by the Agency pursuant
hereto has been paid in full.
11. In the event of litigation concerning the terms of
this Guarantee, the prevailing party shall be entitled to
reasonable attorneys' fees.
12. This Guarantee and the respective rights and
obligations created hereby are subject to and are to be construed
according to the laws of the State of California.
13. Lender may assign its rights under this Guarantee,
subject to providing fifteen days' prior written notice thereof to
the Agency.
14. The Agency's obligations under this Agreement,
notwithstanding any prior execution hereof by any representative of
the Agency, are subject to the approval of the Community
Development Commission, the legislative body of the Agency.
i
Dated: REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
By:
'! KENNETH J. HENDERSON
c��'r 'Executive Director
APPROVED AS TO CORM:
Special Agency Counsel
ATT. 2 - Page 2
i
ATTACHMENT NO. 3
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 , 1994, by STANDARD
MORTGAGE CO. , INC. hereinafter called "Trustor" whose address is
375 West Seventh Street, San Bernardino, California 92401, 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, County of San Bernardino, State of
California, described as follows:
SEE ATTACHMENT NO. 1
t
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 of 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
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
ATT. 3 - Page 1
connection therewith; to comply with all laws, ordinances,
regulations, covenants, conditions and restrictions affecting the
property; not to commit or permit any waste thereon 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
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
ATT. 3 - Page 2
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 affecting 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
rental, Trustor or such owner may be removed from the premises by
summary dispossession proceedings or by any other appropriate
action or proceeding.
ATT. 3 - Page 3 ��
. a
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.
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
ATT. 3 - Page 4
which the land or such part thereof as is then affected by this
deed of trust is situated, appoint another trustee instead 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 to Beneficiary.
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.
16. Without affecting the liability of Trustor or of any
other party now or hereafter bound by the terms hereof, from time
ATT. 3 - Page 5
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 fullest 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. 3 - Page 6 (�
MAILING ADDRESSES FOR NOTICES:
Standard Mortgage Co. , Inc.
375 West Seventh Street
P.O. Box 107
San Bernardino, California 92401
Attn: Richard Steiler
Executed at San Bernardino, California, on the date first
above written.
STANDARD MORTGAGE CO. , INC.
By:
Richard Steiler
STANDARD MORTGAGE CO. , INC.
By:
Name:
I
ATT. 3 - Page 7 /�
ATTACHMENT NO. 4
PERSONAL GUARANTEE ON BEHALF OF
STANDARD MORTGAGE CO. . INC. FOR
OBLIGATION UNDER OWNER PARTICIPATION AGREEMENT
1. For aluab a consideration, the undersigned RICHARD
STEILER, (hereinafter called "Guarantors")
unconditional y guA antde and promise to pay to the REDEVELOPMENT
AGENCY OF THE CITY QF SAN BERNARDINO (hereinafter called "Loan
Guarantor") , or -order, on demand, in lawful money of the United
States, any and all indebtedness of STANDARD MORTGAGE CO. , INC. as
borrower, (hereinafter collectively called "Borrower") to Loan
Guarantor. The word "indebtedness" is used herein in its most
comprehensive sense and includes any and all advances, debts,
obligations, and liabilities of Borrower or any one or more of
them, heretofore, now, or hereafter made, incurred or created,
whether voluntary or involuntary and however arising, whether due
or not due, absolute or contingent, liquidated or unliquidated,
determined or undetermined, and whether Borrower may be liable
individually or jointly with others, or whether recovery upon such
indebtedness may be or hereafter become barred by any statute of
limitations, or whether such indebtedness may be or hereafter
become otherwise unenforceable. �` ✓ �\� { `
2. The Loan Guarantor has approv��at a duly called and
held meeting of the Loan Guarantor on ? �! �i ' ` (the
"Meeting") execution of a guarantee of the Borrower's obligation
under a note (the "Agency Guarantee") , which Agency Guarantee shall
be secured by this guarantee (the "Personal Guarantee") , executed
by Guarantors. The liability of Guarantors shall not exceed at any
one time the sum of One Million Seven Hundred Thousand Dollars
($1,700,000) for principal, in addition to all attorneys fees
provided under Section 11 of the Agency Guarantee, all interest
upon the indebtedness or upon such part thereof together with
penalty and interest as set forth in the Owner Participation
Agreement by and between the Agency and the Borrower (the "OPA") .
Notwithstanding the foregoing, Loan Guarantor may permit the
indebtedness of Borrower to exceed Guarantors' liability. This is
a continuing guarantee relating to any indebtedness, including that
arising under successive transactions which shall either continue
the indebtedness or from time to time renew it after it has been
satisfied. This Personal Guarantee shall not apply to any
indebtedness created after actual receipt by Loan Guarantor of
written notice of its revocation as to future transactions. Any
payment by Guarantors shall not reduce their maximum obligation
hereunder unless written notice to that effect be actually received
by Loan Guarantor at or prior to the time of such payment and
agreed to in writing by Loan Guarantor.
3 . The obligations hereunder are joint and several, and
independent of the obligations of Borrower, and a separate action
or actions may be brought and prosecuted against Guarantors whether
action is brought against Borrower or whether Borrower be joined in
ATT. 3 - Page 8
any such action or actions; and Guarantors waive the benefit of any
statute of limitations affecting their liability hereunder or the
enforcement thereof.
4. Guarantors authorize Loan Guarantor, upon written
notice or demand and without affecting their liability hereunder,
from time to time to (a) renew, compromise, extend, accelerate, or
otherwise change the time for payment of, or otherwise change the
terms of the indebtedness or any part thereof, including increase
or decrease of the rate or rates of interest thereon; (b) take and
hold security for the payment of this Personal Guarantee or the
indebtedness guaranteed, and exchange, enforce, waive, and release
any such security; (c) apply such security and direct the order or
manner of sale thereof as Loan Guarantor in its discretion may
determine; and (d) release or substitute any one or more of the
endorsers or guarantors. Loan Guarantor may without notice assign
this Personal Guarantee in whole or in part.
S. Guarantors waive any right to require Loan Guarantor
to (a) proceed against Borrower; (b) proceed against or exhaust any
security held from Borrower; or (c) pursue any other remedy in Loan
Guarantor's power whatsoever. Guarantors waive any defense arising
by reason of any disability or other defense of Borrower or by
reason of the cessation from any cause whatsoever of the liability
of Borrower. Until all indebtedness of Borrower to Loan Guarantor
shall have been paid in full, even though such indebtedness is in
excess of Guarantors' liability hereunder, Guarantors shall have no
right of subrogation, and waive any right to enforce any remedy
which Loan Guarantor now has or may hereafter have against
Borrower, and waive any benefit of, and any right to participate in
any security now or hereafter held by Loan Guarantor. Guarantors
waive all presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor,
and notices of acceptance of this Personal Guarantee and of the
existence, creation, or incurring of new or additional
indebtedness.
6. No lien or right of setoff shall be deemed to have
been waived by any act or conduct on the part of Loan Guarantor, or
by any neglect to exercise such right of setoff or to enforce such
lien, or by any delay in so doing; and every right of setoff and
lien shall continue in full force and effect until such right of
setoff or lien is specifically waived or released by an instrument
in writing executed by Loan Guarantor.
7. Guarantors agree to pay reasonable attorney's fees
and all other costs and expenses which may be incurred by Loan
Guarantor in the enforcement of this Personal Guarantee.
8. This Personal Guarantee shall remain in effect until
such time as all principal, accrued interest and penalty charges,
as applicable, and all other costs, fees and expenses incurred by
Loan Guarantor pursuant to the OPA have been paid in full. At such
time as all financial responsibilities of Borrower to Loan
ATT. 3 - Page 9
Guarantor have been extinguished, this Personal Guarantee shall be
of no force and effect and shall be delivered to the Guarantors.
9. In all cases where there is but a single Borrower or
a single Guarantor, then all words used herein in the plural shall
be deemed to have been used in the singular where the context and
construction so require; and when there is more than one Borrower
named herein, or when this Personal Guarantee is executed by more
than one Guarantor, the word "Borrowers" and the word "Guarantors"
respectively shall mean all and any one or more of them.
IN WITNESS WHEREOF, the undersigned Guarantors have
executed this Personal Guarantee on , 1994.
GUARANTORS
Richard Steiler
ACCEPTED BY LOAN GUARANTOR:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
By:
Kenneth J. Henderson,
Executive Director
ATT. 3 - Page 10