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EXHIBIT 10.13
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Loeb and Loeb
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx, Esg.
- - - - - - - -SPACE ABOVE THIS LINE FOR RECORDER'S USE - - - - - - -
ASSIGNMENT, MODIFICATION AND ASSUMPTION
AGREEMENT AND CONSENT
THIS ASSIGNMENT, MODIFICATION AND ASSUMPTION AGREEMENT AND CONSENT
(this "Agreement" ), executed as of the 3rd day of February, 1993, by and among
UNION BANK, a California corporation ("Lender"), Westerra Pacific Associates, a
California general partnership ("Borrower"), and JAYCOR, a California
corporation ("New Borrower"), is made with reference to the following facts:
A. Lender and Borrower entered into a Building Loan Agreement dated
September 1, 1989, pursuant to which Lender agreed to make a loan (the "Loan")
to Borrower in the principal sum of $17,500,000 to finance the cost of
constructing an office building containing approximately 103,800 square feet
(the "Improvements"), located on certain real property in San Diego County,
California. Said Building Loan Agreement, as modified by the Modification
Agreements referred to in Recital F below, shall be referred to herein as the
"Building Loan Agreement."
B. The Loan is evidenced by a Note Secured by Deed of Trust executed
by Borrower in favor of Lender, dated September 1, 1989, in the original
principal amount of $17,500,000. Said Note Secured by Deed of Trust, as
modified by the Modification Agreements referred to in Recital F below, shall
be referred to herein as the "Note."
C. The Note is secured by, among other things, a Construction Deed
of Trust and Assignment of Rents dated September 1, 1989, executed by Borrower,
as Trustor, to Lender, as Trustee, in favor of Lender, as Beneficiary, and
recorded on September 11, 1989, as Instrument No. 89-488385 in the Official
Records of San Diego County, California (the "Official Records"). Said
Construction Deed of Trust and Assignment of Rents, as modified by the
Modification Agreements referred to in Recital F below, shall be referred to
herein as the "Deed of Trust." The Deed of Trust currently encumbers certain
real property (the "Property"), together with the Improvements thereon
(collectively, the "Project") located in the County of San Diego, State of
California, which Property is more particularly described on Exhibit "A"
attached hereto and made a part hereof.
D. The Note is also secured by, among other things, an Assignment of
Real Property Lease dated September
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1, 1989, executed by Borrower in favor of Lender, and recorded on September 11,
1989, as Instrument No. 89-488386 in the Official Records. Said Assignment of
Real Property Lease, as modified by the Modification Agreements referred to in
Recital F below, shall be referred to herein as the "Assignment of Lease". Said
Assignment of Lease assigns to Lender, as security for the Loan, Borrower's
interest as lessor under that certain lease agreement dated December 7, 1988
(the "JAYCOR Lease"), entered into by and between Borrower, as lessor, and New
Borrower, as lessee.
E. The Note is also secured by, among other things, a Security
Agreement/Chattel Mortgage dated September 1, 1989, executed by Borrower in
favor of Lender. Said Security Agreement/Chattel Mortgage, as modified by the
Modification Agreements referred to in Recital F below, shall be referred to
herein as the "Security Agreement."
F. Borrower and Lender entered into the following modification
agreements (collectively, the "Modification Agreements"): (i) that certain
Letter Amendment dated September 1, 1989, (ii) that certain Amendment Agreement
dated May 23, 1991, and that certain Amendment Agreement (Short Form) dated May
23, 1991 recorded on July 3, 1991, as Instrument No. 00-0000000 in the Official
Records, (iii) that certain Letter Amendment dated May 23, 1991, (iv) that
certain Amendment Agreement dated September 4, 1991, and that certain Amendment
Agreement (Short Form) dated September 4, 1991, recorded on December 6, 1991,
as Instrument No. 00-0000000 in the Official Records, and (v) that certain
Modification Agreement dated March 11, 1992, recorded as Instrument No.
00-0000000 in the Official Records.
G. The Building Loan Agreement, the Note, the Deed of Trust, and the
Security Agreement are hereinafter collectively referred to as the "Existing
Loan Documents."
H. In connection with the making of the Loan, Xxxxxx X. Xxxxxxx, Xx.
("Xxxxxxx"), and E. Xxxxxx Xxxxxxxx ("Xxxxxxxx") each executed and delivered to
Lender a Continuing Guaranty dated September 1, 1989 (collectively, the
"Guaranties"), guaranteeing the obligation of Borrower under the Loan.
I. New Borrower has entered into a purchase agreement with Borrower
to purchase the Project. In connection therewith, Lender has issued to New
Borrower a commitment letter dated December 7, 1992 (the "Commitment Letter"),
pursuant to which Lender has agreed to approve New Borrower's assumption of the
Loan and modify the Loan subject to the terms and conditions set forth in the
Commitment Letter.
J. Borrower desires to sell the Project to New Borrower and to
assign to New Borrower all of Borrower's rights and obligations under the
Existing Loan Documents. New Borrower has agreed to acquire title to the
Project and, upon such acquisition of title, to assume all of Borrower's
obligations under the Existing Loan Documents, as modified by the terms and
conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises and
agreements hereinafter contained, and other
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good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Lender, Borrower and New Borrower hereby agree as follows:
1. Assignment. Effective upon the Closing Date, Borrower hereby
assigns and transfers to New Borrower all of Borrower 's rights and obligations
under the Existing Loan Documents, as modified by this Agreement.
2. Assumption. Effective upon the Closing Date, New Borrower hereby
assumes and agrees to be bound by and to perform and observe all of the
obligations, covenants, terms and conditions to be performed or observed by
Borrower under the Existing Loan Documents, as modified by this Agreement.
3. Consent. Effective upon the Closing Date, Lender hereby consents
to the transfer of title to the Project to New Borrower (subject to and
encumbered by the liens and security interests in favor of Lender arising under
the Deed of Trust and the other Existing Loan Documents as modified by this
Agreement) concurrently with the assignment and assumption as described in
paragraphs 1 and 2 above. Effective upon the Closing Date, Lender hereby
releases Borrower from the performance and observance of all the obligations,
covenants, terms and conditions to be performed or observed by Borrower under
the Existing Loan Documents. Lender hereby agrees with and for the benefit of
New Borrower that, effective upon the Closing Date, Lender will perform and
observe all of the obligations, covenants, terms and conditions to be performed
or observed by Lender under the Existing Loan Documents, as modified by this
Agreement.
4. Release of Guarantor. Effective upon the Closing Date, Romanow
and Xxxxxxxx shall be released from all obligations under the Guaranties, which
Guaranties shall be of no further force or effect.
5. Loan Fee. New Borrower shall pay to Lender, in cash or
cash-equivalent funds, a non-refundable loan fee (the "Loan Fee"), in the total
amount of Three Hundred Twenty-Eight Thousand Eight Hundred Forty-One and
30/100 Dollars ($328,841.30), payable as follows:
(a) On or before the Closing Date, and as a condition
precedent thereto, New Borrower shall have paid to Lender, in cash or cash
equivalent funds, the total sum of One Hundred Fifty One Thousand Eight Hundred
Twenty Six Dollars ($151,826.00) (Lender acknowledges that it has heretofore
received $15,000.00 of said $151,826.00 fee);
(b) The sum of $35,403.06 shall be due and payable on March 2,
1998, provided any portion of the Loan remains outstanding as of such date;
(c) The sum of $35,403.06 shall be due and payable on March 1,
1999, provided any portion of the Loan remains outstanding as of such date;
(d) The sum of $35,403.06 shall be due and payable on March 1,
2000, provided any portion of the Loan remains outstanding as of such date;
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(e) The sum of $35,403.06 shall be due and payable on March 1,
2001, provided any portion of the Loan remains outstanding as of such date; and
(f) The sum of $35,403.06 shall be due and payable on March 3,
2002, provided any portion of the Loan remains outstanding as of such date.
6. Extension of Maturity Date. Effective upon the Closing Date, the
term of the Loan shall be extended for a period of ten (10) years commencing as
of the Closing Date.
7. Amended and Restated Note/Acknowledgement of Fully Disbursed
Loan. On or before the Closing Date, New Borrower shall execute and deliver to
Lender an amended and restated note (the "Amended Note"), in an amount equal to
the outstanding principal balance of the Note as of the Closing Date, which as
of the date hereof is $15,182,645.00. The Amended Note shall be in form and
substance a Exhibit "B" attached hereto and made a part hereof, and shall
supercede and replace the Note effective upon the Closing Date. The Amended
Note shall be dated as of the Closing Date and shall mature ten (10) years
after the Closing Date. New Borrower agrees to pay to Lender the monthly
installments of principal and interest in the amounts and on the dates set
forth in the Amended Note. New Borrower acknowledges that the Loan has been
fully disbursed and that New Borrower will not receive disbursement of any loan
proceeds through New Borrower's assumption of the Loan.
8. Modifications to Deed of Trust. Effective upon the Closing Date,
the Deed of Trust is modified as follows:
(a) The term "Construction" shall be deleted from the heading
on the first page of the Deed of Trust, which heading shall read "Deed of Trust
and Assignment of Rents".
(b) The term "Trustor" shall mean New Borrower.
(c) Paragraph 29 of the Deed of Trust shall be deleted in its
entirety; and
(d) The last sentence of paragraph 23 of the Deed of Trust
commencing with the words "Except as to the partnership interest of X. Xxxxxxx
Xxxxxxxx" is deleted in its entirety and the following sentence is inserted in
its place and stead:
"Notwithstanding the foregoing, Trustor shall be permitted to
transfer or issue stock in the ordinary course of business;
provided, however, that in connection therewith, Trustor shall
not, without the prior written consent of Beneficiary (which
consent shall not be unreasonably withheld or delayed)
transfer stock or shares which (i) during any one (1) year
period aggregate more than twenty-five percent (25%) of
Trustor's then outstanding shares, and (ii) result in any
person or entity acquiring controlling
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interest in Trustor (i.e., more than 49% of the then
outstanding shares or stock of Trustor)."
9. Modifications to Security Agreement. Effective upon the Closing
Date, the Security Agreement is modified as follows:
(a) The term "Debtor" shall mean New Borrower.
(b) The description of the collateral described in Section B
of the Security Agreement is deleted in its entirety and the following
description is inserted in its lace and stead:
"Debtor's interest in all machinery, equipment, appliances and
fixtures for generating or distributing air, water, heat,
electricity, light, fuel or refrigeration, or for ventilating
or sanitary purposes, or for the exclusion of vermin or
insects, or for the removal of dust, refuse or garbage, all
wall-beds, wall-safes, built in furniture and installations,
shelving, lockers, partitions, door-stops, vaults, elevators,
dumb-waiters, awnings, window shades, venetian blinds, light
fixtures, fire hoses and brackets and boxes for same, fire
sprinklers, alarm systems, drapery rods and brackets, screens,
linoleum, carpets, plumbing, laundry tubs and trays, ice
boxes, refrigerators, heating units, stoves, water heaters,
incinerators, and communication systems, together with any
additions to, substitutions for, changes in or replacements
thereof which are affixed to, attached to, placed upon or used
in any way in connection with all or any portion of that
certain property described on Exhibit "A" attached hereto (the
"Property"), including all right, title and interest of Debtor
in any proceeds thereof, including insurance proceeds."
10. Hazardous Materials Indemnity. On or before the Closing Date,
New Borrower shall execute and deliver to Lender a hazardous materials
indemnity in form and substance as that attached hereto as Exhibit "C" (the
"Hazardous Materials Indemnity").
11. Termination of Building Loan Agreement. Lender and New Borrower
acknowledge that the Improvements have been fully constructed and that all Loan
proceeds have been fully disbursed. Therefore, effective upon the Closing Date,
the Building Loan Agreement shall be terminated in its entirety.
12. Insurance Requirements. Effective upon the Closing Date, the
following provisions shall constitute the insurance requirements required by
Lender pursuant to the provisions of paragraph (3) of the Deed of Trust:
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(a) New Borrower shall, at its sole cost and expense, insure
and keep insured the Projects against such perils and hazards and in such
amounts as set forth below:
Coverage
Type Occurrence/Agreements Deductible
---- ---------------------- -----------
(i) All Risk $15,000,000 $10,000
(ii) Business Interruption $1,000,000 blanket None 20%% co-insurance
(iii) Boiler and Machinery $2,500,000 $5,000
(iv) Public Liability $1,000,000/$2,000,000
(b) All insurance shall: (i) be carried in companies with a
Best's rating of A-/VII or better, or otherwise acceptable to Lender (provided,
however, that the rating of A/X or better shall be required for the insurance
carrier covering the Improvements, (ii) be in form and content acceptable to
Lender, and (iii) provide thirty (30) days' advance written notice to Lender
before any cancellation, adverse material modification or notice of
non-renewal.
All physical damage policies and renewals shall contain (i) a
standard mortgagee clause naming Lender as mortgagee, if such clause is
generally commercially available, which clause shall expressly state that any
breach of any condition or warranty by New Borrower shall not prejudice the
rights of Lender under such insurance, and (ii) a loss payable clause in favor
of Lender for any personal property, contents, inventory, or equipment which is
secured by the Deed of Trust, loss of rents and business interruption. All
liability policies and renewals shall name Lender as additional insured. No
additional parties shall appear in the mortgagee or loss payable clause with
respect to coverage of property secured by the Deed of Trust, without Lender's
prior written consent.
(c) New Borrower shall use its best efforts to deliver
originals of all policies and renewals (or certificates evidencing the same),
(or evidence satisfactory to Lender of the continuing coverage) to Lender at
least five (5) days before the expiration of existing policies and, in any
event, New Borrower shall deliver originals (or copies certified by the
insurance carrier to be true, correct and complete) of such policies or
certificates to Lender at least five (5) days before the expiration of existing
policies; provided, however, that such policies or certificates shall require
that Lender be given at least thirty (30) days prior written notification
before any policy or certificate may be cancelled. If New Borrower has not
received satisfactory evidence of such renewal or substitute insurance in the
time frame herein specified, Lender shall have the right, but not the
obligation, to purchase such insurance for Lender's interest only. Any amounts
so disbursed by Lender pursuant to this paragraph 12 shall be a part of the
debt secured by the Deed of Trust and shall bear interest at the default rate
set forth in paragraph E.3 of the Amended Note. Nothing contained in this
paragraph 12 shall require Lender to incur any expense or take any action
hereunder, and inaction by Lender shall never be considered a waiver of any
right accruing to Lender on account of this paragraph 12.
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13. Extinguishment of JAYCOR Lease/Return of Letter of Credit.
Effective upon the Closing Date, and as a result of New Borrower obtaining
title to the Project (which title shall merge with its possessory interests in
the Project under the JAYCOR Lease), the JAYCOR Lease shall terminate and be of
no further force and effect and Lender shall cause, at New Borrower's sole cost
and expense, a termination of the Assignment of Lease to be recorded in the
Official Records. Lender agrees to return to New Borrower on the first business
day following the Closing Date that certain letter of credit number NBS127851
in the amount of $1,000,000 which was issued pursuant to the requirements of
the JAYCOR Lease.
14. Approval of Future Leases. New Borrower agrees not to enter into
any lease for all or any portion of the Project without obtaining Lender's
prior written consent, which consent shall not be unreasonably withheld or
delayed. Notwithstanding anything contained in the Existing Loan Documents to
the contrary, New Borrower shall be permitted to lease (without Lender's prior
written consent) up to an aggregate of two thousand-five hundred (2,500) square
feet of the rentable space in the Project provided such lease or leases contain
the following minimum terms: (i) the rent thereunder shall not be less than One
Dollar ($1.00) per square foot on a triple net basis, (ii) the term of the
lease shall not exceed the term of the Loan, as modified hereby, and (iii) such
lessee(s) must agree at Lender's request, to execute estoppel certificates and
either subordination agreements or subordination, non-disturbance and
attornment agreements in form and substance acceptable to Lender.
15. Appraisals. Lender shall have the right, in its reasonable
discretion, to obtain new appraisals or update existing appraisals at any time
while the Loan or any portion thereof remains outstanding. New Borrower agrees
to pay, upon demand, a sum not to exceed Fifteen Thousand Dollars ($15,000) per
appraisal for the appraisal fees and related expenses incurred by Lender in
obtaining any appraisal report performed pursuant to or in connection with the
requirement of any governmental agency or regulatory body having jurisdiction
over Lender.
16. Access to the Project. At all reasonable times prior to the
payment in full of the unpaid principal balance of the Loan and all accrued but
unpaid interest thereon, Lender shall, upon reasonable notice to New Borrower,
have the right of access to the Project for itself and its representatives and
to inspect the Project and the physical condition thereof, to take samples from
the soil and the components of the Improvements included within the Project, to
review the books and records of New Borrower wherever situated with respect to
the Project, to interview New Borrower's employees, officers and tenants, and
to conduct other similar activities on the Project. During said period, New
Borrower shall furnish to Lender such statements and other financial data as
Lender shall from time to time reasonably request. Lender agrees to cooperate
with New Borrower to comply with all governmental security regulations
concerning access to the Project.
17. Confirmation of Obligations. The obligations of New Borrower
under the Amended Note, the Deed of Trust
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(as modified by this Agreement), the Security Agreement (as modified by this
Agreement), and the other Existing Loan Documents (as modified by this
Agreement), and as assumed by New Borrower pursuant to this Agreement, shall be
secured by the Deed of Trust, the Security Agreement, and any other Existing
Loan Documents securing the Loan, as modified hereby.
18. Notices. Notwithstanding anything to the contrary contained in
the Existing Loan Documents, all communications, notices and demands of any
kind which any party hereto may be required or may desire to serve upon any
other party shall be in writing and shall be personally served upon such party,
mailed by United States registered or certified mail, postage prepaid, return
receipt requested, or sent by a locally recognized courier service for same day
or next day delivery, to be confirmed in writing by such courier, addressed as
follows:
If to Lender: Union Bank
San Diego Loan Center
0000 Xx Xxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Mr. Xxxxx Xxxxxxx
With a copy to: Loeb and Loeb
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx,
Esq.
If to Borrower: Westerra Pacific Associates
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxx
Xxxxxxx, Xx.
With a copy to: Arlington Xxx Xxxxxxx, Esq.
Xxxxxxx & Xxxxx
000 "X" Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
If to New Borrower: JAYCOR
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Mr. Xxxxx Xxxxxxx
With a copy to: Xxxxxxx, Phleger & Xxxxxxxx
000 Xxxx "X" Xxxxxx
Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxxx, Esq.
Any party may change its address by giving the other parties written
notice of its new address as herein provided. Notices given in the manner
aforesaid shall be deemed delivered when actually received or refused by the
party to whom sent, unless such notice is mailed as aforesaid, in which event
such notice shall be deemed complete on the day of actual delivery as shown by
the return receipt or at the expiration of the third (3rd)
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business day after the date of mailing, whichever first occurs.
19. Additional Conditions.
(a) Borrower: Borrower shall satisfy all of
the conditions set forth below on or before the Closing
Date:
(i) Borrower shall execute and deliver to Lender four
(4) counterpart originals of this Agreement.
(ii) Borrower shall pay to Lender in cash or cash
equivalent funds an amount which will bring current all accrued but unpaid
interest on the Note as of the Closing Date, and the amount of any costs or
expenses payable by Borrower to Lender under the Loan.
(iii) Borrower shall execute and deliver to Lender, and
cause Xxxxxxx to execute and deliver to Lender, a Release in favor of Lender in
form and substance satisfactory to Lender.
(iv) Borrower shall cause to be delivered to Lender such
additional documents, resolutions, certificates, articles of incorporation,
bylaws, certificates of good standing, consents, opinions and other items as
Lender may require in order to consummate the transactions contemplated by this
Agreement.
(v) On the Closing Date, Borrower shall transfer title
to the Project to New Borrower by causing a grant deed in favor of New Borrower
to be recorded in the Official Records.
(b) New Borrower. New Borrower shall satisfy all of the
conditions set forth below on or before the Closing Date:
(i) New Borrower shall have paid to Lender, in cash or
cash equivalent funds that portion of the Loan Fee in the amount of
$151,826.00, as set forth in paragraph 5 of this Agreement.
(ii) New Borrower shall execute and deliver to Lender
four (4) counterpart originals of this Agreement.
(iii) New Borrower shall execute and deliver to Lender
the Amended Note described in paragraph 7 of this Agreement.
(iv) New Borrower shall execute and deliver to Lender
the Hazardous Materials Indemnity described in paragraph 10 of this Agreement.
(v) New Borrower shall execute and deliver to Lender a
UCC-1 Financing Statement covering the collateral described in paragraph 9 (b)
of this Agreement.
(vi) New Borrower shall deliver to Lender the written
consent of Xxxxxxx to the transactions contemplated by this Agreement.
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(vii) New Borrower shall cause to be delivered to Lender
such additional documents, financing statements, resolutions, certificates,
articles of incorporation, bylaws, certificates of good standing, consents,
opinions and other items as Lender may require in order to consummate the
transactions contemplated by this Agreement.
(viii) New Borrower shall pay to Lender in immediately
available funds all costs and expenses incurred by Lender in connection with
the negotiation, documentation and execution of this Agreement, including
without limitation, all recording fees and the fees and expenses of Lender's
counsel; provided, however, that New Borrower shall not be required to pay an
amount in excess of Fifteen Thousand Dollars ($15,000.00) for the preparation
of the loan documents for New Borrower's assumption of the Loan.
(ix) New Borrower shall, prior to the Closing Date, at
New Borrower's sole cost and expense, either (i) cause Founders Title Insurance
Company to issue such endorsements as Lender shall reasonably require (the
"Title Endorsements") to that certain ALTA Loan Policy of Title Insurance No.
AC883198 (the "Title Policy"), including, without limitation, CLTA Endorsement
No. 110. 5 (with only those exceptions acceptable to Lender), insuring that the
lien of the Deed of Trust retains priority as a first lien on the Property
after the recording of this Agreement, or (ii) cause Lawyers Title Insurance
Corporation to issue in favor of Lender its ALTA Loan Policy of Title Insurance
(October 21, 1987 Form) (the "Title Policy"), with a liability limit in the
amount of the Amended Note, insuring the priority of the lien of the Deed of
Trust as a first lien upon the Property, with the fee title to the Property
vested in New Borrower, subject only to such exceptions as approved in writing
by Lender, and including such endorsements as Lender shall reasonably require.
New Borrower shall, at its sole cost and expense, do all things necessary to
maintain the Deed of Trust as a valid first lien on the Property during the
term of the Loan.
(x) New Borrower shall cause Xxxxx Fargo Bank to execute
and deliver to Lender an acknowledgement, effective not more than five (5) days
prior to the Closing Date, that New Borrower is not in default under any of its
agreements or obligations with Xxxxx Fargo Bank.
(xi) New Borrower shall cause to be delivered to Lender
evidence of insurance pursuant to the provisions of paragraph 12 of this
Agreement.
(xii) New Borrower shall deliver to Lender evidence
satisfactory to Lender that New Borrower has satisfied all of the conditions
required to be satisfied by New Borrower under the Commitment Letter,
including, without limitation, the condition that New Borrower has at all times
during the term of the Commitment Letter maintained the minimum financial
requirements set forth in paragraph 10 of the Commitment Letter.
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(xiii) New Borrower shall cause to be delivered to
Lender the legal opinion referred to in paragraph 22 of this Agreement.
(xiv) New Borrower shall deliver to Lender a current
balance sheet and income and expense statement reflecting New Borrower's assets
and liabilities and New Borrower's income and expenses, certified by New
Borrower's chief financial officer to be true, correct, and complete.
20. Closing Date. As used in this Agreement, the Closing Date shall
mean the date of recordation of this Agreement in the Official Records. The
Closing Date shall not be later than March 1, 1993.
21. Reasonable Approval. Wherever in the Existing Loan Documents, as
hereby modified, the Amended Note, or the Hazardous Materials Indemnity, the
approval of Lender or its counsel is required, such approvals shall not be
unreasonably withheld or delayed unless there is an express provision to the
contrary (i.e., where Lender is given sole discretion).
22. Legal Opinion. Lender shall have received a legal opinion from
New Borrower's attorneys, prepared at New Borrower's expense, in form
reasonably satisfactory to Lender and its counsel (substantially in accordance
with the guidelines contained in the Legal Opinions in California Real Estate
Transactions (1986) and Legal Opinions in California Real Estate Transactions:
An Addendum (1990), published by the Real Property Law Section of the State Bar
of California), opining: (a) that New Borrower is a California corporation,
duly organized, in good standing and validly existing under the laws of the
State of California, with full power and authority to make the covenants,
warranties and representations set forth in this Agreement and all of the other
documents and instruments evidencing, securing or pertaining to the Loan and to
enter into and execute this Agreement and all of such other documents and
instruments; (b) that the laws of the State of California will be applicable to
the Loan, and all of the other documents and instruments evidencing, securing
or pertaining thereto; (c) that New Borrower's execution of this Agreement and
all of the other documents and instruments evidencing, securing or pertaining
to the Loan have been duly authorized; (d) that this Agreement and all of the
other documents and instruments evidencing, securing or pertaining to the Loan
as modified by this Agreement have been duly executed and constitute the valid
and legal obligations of New Borrower enforceable in accordance with their
respective terms; and (e) as to such other matters as Lender may reasonably
require.
23. Brokerage Fees. New Borrower hereby represents that there are no
parties entitled to a brokerage commission, finder's fee or other like payment
in connection with this Agreement and New Borrower's assumption of the Loan.
New Borrower hereby agrees to indemnify and hold Lender harmless from and
against any and all loss, cost, liability or expense (including reasonable
attorneys' fees) which may be incurred by Lender on account of any claim by any
party for a brokerage commission, finder's fee or other like payment (other
than such commissions, fees or payments
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resulting from Lender hiring a loan or mortgage broker or other acts of
Lender), in connection with Lender's agreeing to approve New Borrower's
assumption of the Loan and the modification of the Existing Loan Documents.
24. Reaffirmation of Obligations. As of the Closing Date, New
Borrower hereby ratifies and reaffirms all its obligations, representations and
warranties under the Existing Loan Documents, as amended by this Agreement and
agrees to pay the indebtedness evidenced by the Amended Note, the Deed of
Trust, the Hazardous Materials Indemnity, and the other Existing Loan Documents
according to the terms and provisions thereof, as hereby modified. Except as
hereby modified, all of the terms, covenants and provisions of the Amended
Note, the Deed of Trust, the Hazardous Materials Indemnity and the other
Existing Loan Documents shall remain in full force and effect. Without limiting
the generality of the foregoing, New Borrower hereby expressly acknowledges and
agrees that, as of the Closing Date, New Borrower does not have any offsets,
claims or defenses whatsoever against any of its obligations under the Amended
Note, the Deed of Trust, the Hazardous Materials Indemnity, or any of the other
Existing Loan Documents.
25. Entire Agreement. This Agreement contains the entire
understanding between Lender, Borrower and New Borrower with respect to the
subject matter hereof. The Amended Note, the Deed of Trust, the Hazardous
Materials Indemnity and the other Existing Loan Documents shall not be further
amended except by a writing signed by Lender and New Borrower.
26. Successors and Assigns. This Agreement shall be binding upon,
and shall inure to the benefit of, Borrower, New Borrower and Lender and their
respective successors and assigns. Without limiting Lender's rights under the
Existing Loan Documents, Lender shall have the right to assign the Amended
Note, the Deed of Trust, the Hazardous Materials Indemnity and the other
Existing Loan Documents and to disclose any information regarding said
documents to any assignee.
27. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California.
28. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which,
together, shall constitute one and the same instrument.
29. Headings. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
30. Independent Investigation. Borrower represents and warrants to
Lender that Borrower has conducted its own independent investigation and
analysis and has reached its own independent conclusions concerning the
transfer of title to the Project to New Borrower and that said transfer is in
the best interests of Borrower, and that no information with respect thereto
has been furnished to Borrower by Lender. Borrower acknowledges that Lender is
12
13
relying on the representations and warranties contained in this paragraph in
its decision to enter into this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first hereinabove written.
"Lender"
UNION BANK,
a California corporation
By: /s/
-------------------------------------------
Its: Vice President
--------------------------------------
By: /s/
-------------------------------------------
Its: AVP
--------------------------------------
"Borrower"
WESTERRA PACIFIC ASSOCIATES,
a California general partnership
By: /s/ XXXXXX X. XXXXXXX, XX.
-------------------------------------------
Xxxxxx X. Xxxxxxx, Xx.
General Partner
"New Borrower"
JAYCOR, a California corporation
By:
--------------------------------------------
Its:
---------------------------------------
By:
--------------------------------------------
Its:
---------------------------------------
13
14
relying on the representations and warranties contained in this paragraph in
its decision to enter into this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first hereinabove written.
"Lender"
UNION BANK,
a California corporation
By: /s/
-------------------------------------------
Its: Vice President
--------------------------------------
By: /s/
-------------------------------------------
Its: AVP
--------------------------------------
"Borrower"
WESTERRA PACIFIC ASSOCIATES,
a California general partnership
By:
-------------------------------------------
Xxxxxx X. Xxxxxxx, Xx.
General Partner
"New Borrower"
JAYCOR, a California corporation
By: /s/ Xxxxx Xxxxxxx
--------------------------------------------
Its: Vice President - Finance
---------------------------------------
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Its: Corporate Secretary
---------------------------------------
13
15
State of Pennsylvania ) CAPACITY CLAIMED BY SIGNER
County of Xxxxxxxxxx ) [ ] INDIVIDUAL(S)
[ ] CORPORATE
On 2/01/93, before me, Xxxxxx X. Xxxxxxx, Xx. General Partner
----------- -------------------------------------- -------------------
Date NAME, TITLE OF OFFICER Officer(s)
- E.G., "XXXX XXX, NOTARY PUBLIC" ---------------
personally appeared Xxxxxx X. Xxxxxxx, Xx. Title(s)
-------------------------------------
NAME(S) OF SIGNER(S)
[X] personnally known to me - OR - [ ] proved to me on the basis of [X] GENERAL PARTNER(S)
satisfactory evidence to be the person(s) [ ] ATTORNEY-IN-FACT
whose name(s) is/are subscribed to the [ ] TRUSTEE(S)
within instrument and acknowledged to me [ ] SUBSCRIBING WITNESS
that he/she/they executed the same in [ ] GUARDIAN/CONSERVATOR
his/her/their authorized capacity(ies), [ ] OTHER:
[SEAL] 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.
SIGNER IS REPRESENTING:
Witness my hand and official seal. NAME OF PERSON(S) OR ENTITY(IES)
/S/ Xxxxxx X. Xxxxx, Notary Public
-----------------------------------------
SIGNATURE OF NOTARY ------------------------------------
------------------------------------
------------------------------------
14
16
State of California ) CAPACITY CLAIMED BY SIGNER
County of San Diego ) [ ] INDIVIDUAL(S)`
[x] CORPORATE
On 2/4/93 before me, Xxxxx X. Xxxxxx, Notary Public Vice President
----------- ------------------------------------ -------------------
Date NAME, TITLE OF OFFICER Officer(s) Ass't Vice President
- E.G., "XXXX XXX, NOTARY PUBLIC" --------------------
personally appeared Xxxx Xxxxxxx and Xxxxx Xxxxxxx Title(s)
-------------------------------------
NAME(S) OF SIGNER(S)
[X] personnally known to me - OR - [ ] proved to me on the basis [ ] PARTNER(S)
of satisfactory evidence to be the person(s) [ ] ATTORNEY-IN-FACT
whose name(s) are subscribed to the [ ] TRUSTEE(S)
within instrument and acknowledged to [ ] SUBSCRIBING WITNESS
me that they executed the same in [ ] GUARDIAN/CONSERVATOR
their authorized capacity(ies), [ ] OTHER:
[SEAL] and that by their signature(s) on the ___________________________
instrument the person(s), or the entity ___________________________
upon behalf of which the person(s) acted, ___________________________
executed the instrument.
SIGNER IS REPRESENTING:
Witness my hand and official seal. NAME OF PERSON(S) OR ENTITY(IES)
/S/ Xxxxx X. Xxxxxx
----------------------------------------- /S/ Union Bank
SIGNATURE OF NOTARY ------------------------------------
------------------------------------
------------------------------------
17
State of California ) CAPACITY CLAIMED BY SIGNER
County of San Diego ) [ ] INDIVIDUAL(S)`
[x] CORPORATE
On Feb 3, 1993, before me, Xxxxxxxx X. Xxxxxxxxx, Notary Public VP-Finance
----------- ------------------------------------ -------------------
Date NAME, TITLE OF OFFICER Officer(s) Corp. Secretary
- E.G., "XXXX XXX, NOTARY PUBLIC" ---------------
personally appeared Xxxxx Xxxxxxx and Xxxxxxx X. Xxxxxxx Title(s)
-------------------------------------
NAME(S) OF SIGNER(S)
[X] personnally known to me - OR - [ ] proved to me on the basis [ ] PARTNER(S)
of satisfactory evidence to be the person(s) [ ] ATTORNEY-IN-FACT
whose name(s) are subscribed to the [ ] TRUSTEE(S)
within instrument and acknowledged to [ ] SUBSCRIBING WITNESS
me that they executed the same in [ ] GUARDIAN/CONSERVATOR
their authorized capacity(ies), [ ] OTHER:
[SEAL] and that by their signature(s) on the ___________________________
instrument the person(s), or the entity ___________________________
upon behalf of which the person(s) acted, ___________________________
executed the instrument.
SIGNER IS REPRESENTING:
Witness my hand and official seal. NAME OF PERSON(S) OR ENTITY(IES)
/S/ Xxxxxxxx X. Xxxxxxxxx
----------------------------------------- /S/ JAYCOR
SIGNATURE OF NOTARY ------------------------------------
------------------------------------
------------------------------------
18
EXHIBIT "A"
XXXXX XXXXXXXXXXX
Xxxxxx 0 xx Xxxxxx Xxx Xx. 00000, in the City of San Diego, County of San Diego,
State of California, filed in the Office of the County Recorder of San Diego
County, January 4, 1990 as File/Page No. 90-006036 of Official Records.
Excepting therefrom all oil, gas, hydrocarbon substances and minerals of every
kind and character lying more than 500 feet below the surface, together with the
right to drill into, through, and to use and occupy all parts of the site lying
more than 500 feet below the surface thereof for any and all purposes incidental
to the exploration for any production of oil, gas, hydrocarbon, substances or
mineral from the site, but without, however, any right to use or disturb either
the surface of the site or any portion thereof within 500 feet of the surface
for any purpose or purposes whatsoever, as reserved in Deed from the City of San
Diego recorded September 11, 1989 as File/Page No. 89-488383 of Official
Records.
19
AMENDED AND RESTATED PROMISSORY
NOTE SECURED BY DEED OF TRUST
(BASE RATE - PRINCIPAL PAYMENTS)
$15,182,645.00 San Diego, California
February 1, 1993
On February 8, 2003, for value received, the undersigned, Jointly and
severally, promise(s) to pay to the order of UNION BANK at its office at 0000 Xx
Xxxxx Xxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx, or at such other place as
the holder of this Note may from time to time designate in writing, the
principal sum of Fifteen Million One Hundred Eighty-Two Thousand Six Hundred
Forty-Five Dollars ($15,182,645) plus interest from the date hereof computed on
principal balances hereof from time to time outstanding payable at the interest
rates and at the times set forth below. Principal and interest shall be payable
in lawful money of the United States.
A. DEFINITIONS
For purposes of this Note, unless the context otherwise requires, the
following terms have the meanings and definitions respectively set forth below:
1. "Adjusted CD-Rate" shall mean the sum, expressed as a percentage,
of (a) the quotient of the CD Base Rate divided by 1 minus the
Reserve Rate, and (b) the Insurance Rate.
2. "Adjusted LIBOR-Rate" shall mean the quotient, expressed as a
percentage, obtained by dividing the LIBOR Base Rate by 1 minus
the Reserve Rate.
3. "Base Interest Rate" shall mean a rate of interest based on either
the Adjusted CD-Rate or the Adjusted LIBOR-Rate.
4. "Base Interest Rate Loan" shall mean amounts outstanding under
this Note that bear interest at a Base Interest Rate.
5. "Base Rate Maturity Date" shall mean the last day of the Interest
Period with respect to principal outstanding on which a Base
Interest Rate has been selected by the undersigned.
6. "Business Day" shall mean a day on which Union Bank is open for
business in California and, with respect to the rate of interest
based on the Adjusted LIBOR-Rate, a day on which dealings in U.S.
dollar deposits outside of the United States may be carried on by
Union Bank.
7. "CD Base Rate" shall mean, with respect to each election by the
undersigned of an interest rate based on the Adjusted CD-Rate, the
rate of interest offered by Union Bank on its bearer certificates
of deposit which are in amounts equal to the amount of principal
covered by the
20
undersigned's interest rate election and are for a term coinciding
with the applicable Interest Period as are sold on the national
market by Union Bank on the first day of the applicable Interest
Period.
8. "Insurance Rates shall mean, in computing the Adjusted CD-Rate,
the annual assessment rate expressed as a decimal (rounded upward,
if necessary, to the next higher 1/100 of 1%) paid by Union Bank
on its insured deposits to the Federal Deposit Insurance
Corporation which rate is in effect on the first day of the
applicable Interest Period, subject to any amendments thereto.
9. "Interest Period" shall mean (i) with respect to funds bearing
interest at a rate based on the Adjusted CD-Rate, any period of
not lest than one (1) year nor more than five (5) years, or (ii)
with respect to funds bearing interest at a rate based on the
Adjusted LIBOR-Rate, for a period of one (1) year. In determining
an Interest Period, a month means a period that starts on one day
in a month and ends on and includes the day preceding the
numerically corresponding day in the next month. For any month in
which there is no such numerically corresponding day, then as to
that month, such day shall be deemed to be the last calendar day
of such month. Any Interest Period which would otherwise end on a
non-Business Day shall end on the next succeeding Business Day
unless that is the first day of a month, in which event such
Interest Period shall end on the day before the next preceding
Business Day.
10. "LIBOR Base Rate" shall mean for each Interest Period the rate per
annum (rounded upward, if necessary, to the nearest 1/100 of 1%)
at which dollar deposits, in immediately available funds and in
lawful money of the United States would be offered to Union Bank,
outside, of the United States, for a term coinciding with such
Interest Period and for an amount equal to the amount of principal
covered by the undersigned's interest rate election.
11. "Origination Date" shall mean the Business Day on which funds are
made available to the undersigned relating to the undersigned's
selection of a Base Interest Rate.
12. "Reference Rate" shall mean the rate of interest announced by
Union Bank at its Corporate Headquarters as its Reference Rate or
equivalent, and which shall vary concurrently with any change in
such rate.
13. "Reserve Rates shall mean, for purposes of computing the Adjusted
CD-Rate only, the reserve requirement expressed as a decimal
imposed by the Board of Governors of the Federal Reserve System
(or any successor thereto) on Union Bank on nonpersonal time
deposits of the type used as a reference in determining the CD
Base Rate and for
21
a term coinciding with the applicable Interest Period in effect on
the first day of the applicable Interest Period, but subject to
any amendments of such reserve requirements and taking into
accounts any adjustment s thereto becoming effective during such
Interest Period. "Reserve Rate" shall mean, for purposes of
computing the Adjusted LIBOR-Rate only, the reserve requirement
expressed as a decimal imposed by the Board of Governors of the
Federal Reserve System (or any successor thereto) under Regulation
D on Eurocurrency liabilities for the applicable Interest Period
as of the first day of such Interest Period, but subject to any
amendments of such reserve requirements and taking into account
any adjustments thereto becoming effective during such Interest
Period; for purposes hereof, any funds bearing interest at a rate
based on the Adjusted LIBOR-Rate shall be deemed to be
Eurocurrency liabilities as defined in Regulation D.
14. "U.S. Securities" shall mean treasury bills, notes or bonds issued
by the United States Treasury Department.
B. INTEREST
1. Interest shall be payable on the first day of each calendar month
following the date hereof and shall be computed daily at the
applicable rates stated below on the basis of the actual number of
days in which all or any portion of the principal amount hereof is
outstanding computed on the basis of a 360 day year. Should
interest not be paid when due it shall become part of the
principal and bear interest as herein provided.
a. Base Interest Rate. At the undersigned's option, amounts
outstanding hereunder in increments of at least the then
full outstanding principal balance payable hereunder shall
bear interest at a rate to be selected by the undersigned
which is three and one-quarter percent (3-1/4%) per annum
in excess of the following, during the period prior to
March 2, 1998, and three and three-fifths percent (3-3/5%)
per annum in excess of the following for any period on or
after March 2, 1998:
(i) Union Bank's Adjusted CD-Rate for the Interest
Period if so selected by the undersigned, or
(ii) Union Bank's Adjusted LIBOR-Rate for the Interest
Period if so selected by the undersigned.
Any Base Interest Rate selected by the undersigned may not
be changed, altered or other wise modified until the Base Maturity
Date. The exercise of interest options by the undersigned
22
shall be as recorded on Union Bank's ledger, which ledger shall be
prima facie evidence of the amount borrowed under either interest
option and the interest rate; provided however, that failure of
Union Bank to make any such notation on the ledger shall not
discharge the undersigned from its obligations to repay in full
with interest all amounts borrowed. In no event shall any Interest
Period extend beyond the maturity date of this Note.
To select a Base Interest Rate, the undersigned may, from
time to time with respect to principal outstanding on which a Base
Interest Rate has not been selected and on the expiration of any
Interest Period with respect to principal outstanding on which a
Base Interest Rate has been selected, select a Base Interest Rate
by an authorized representative of the undersigned either
telephoning, mailing, telecopying or hand delivering to an
authorized lending officer of the Bank located in ___________,
California which selection notice must be received by said
authorized lender officer of Bank prior to 10:00 a.m., California
time, on any Business Day and advising that officer of the Base
Interest Rate, the Interest Period and the Origination Date
selected (which Origination Date shall follow the date of such
election by no more than two (2) Business Days).
Union Bank will confirm the terms of the election in
writing by mail to the undersigned promptly after the election is
made. Failure to send such confirmation shall not affect Union
Bank's rights to collect interest at the rates selected. The
election of a Base Interest Rate must be made on a Business Day.
Union Bank reserves the right to fund the principal from any
source of funds notwithstanding any Base Interest Rate selected by
the undersigned.
b. Variable Interest Rate. All principal outstanding hereunder
which is not bearing interest at a Base Interest Rate shall
bear interest at the rate of two and one-half percent (2
1/2%) per annum in excess of the Union Bank Reference Rate.
2. CHANGES, LEGAL RESTRICTIONS. If Union Bank determines at any time in the
future that the effect of any applicable law, rule or regulation, or
change therein, or any change in the interpretation or administration
thereof by any court or other governmental authority, central bank or
comparable agency charged with the interpretation or administration
therefor, or compliance by Union Bank (or its lending office) with any
requirement or directive (whether or not having the force of law) of any
such authority, central bank or comparable agency is to increase the cost
to Union Bank (or its lending office), of making or maintaining any Base
Interest Rate loan or to reduce the amount of any sum received or
receivable by Union Bank (or its lending office) with respect thereto by
an amount
23
deemed by Union Bank to be material and such cost or reduction is not
already reflected in the interest rate charged by Union Bank for the Base
Interest Rate loans, then the undersigned shall pay to Union Bank, on
demand, such additional amounts as Union Bank may determine to be
required to compensate Union Bank for such additional cost or reduction.
Any additional payment under this clause will be computed from the
effective date at which such additional costs have to be borne by Union
Bank. For the purposes of this clause, the determination of Union Bank
shall be conclusive if made reasonably and in good faith.
Except as provided above, this Note and the provisions contained herein
cannot be changed, modified or amended except by a written instrument
executed by both the undersigned and the holder hereof.
C. PRINCIPAL REDUCTION
If not sooner repaid, Borrower shall repay the aggregate unpaid principal
amount outstanding hereunder in One Hundred Twenty (120) installments in
the amounts set forth on Exhibit "c" attached hereto, payable on the
first (1st) day of each calendar month (commencing on the first such day
to occur following the date hereof).
The availability under this Note shall be reduced on a monthly basis on
the same day and in the same amount as each scheduled principal payment.
D. PREPAYMENTS
1. Amounts outstanding hereunder bearing interest at a rate of
interest based on the Reference Rate may be prepaid in whole or in
part at any time.
2. Amounts outstanding hereunder bearing interest at a Base Interest
Rate may only be prepaid in whole or in part provided Union Bank
has received not less than five (5) Business Days prior written
notice of an intention to make such prepayment, and the Base
Interest Rate Loan to which such prepayment applies and the
undersigned pays a prepayment fee, to Union Bank in an amount
equal to:
(a) the difference between
1) the Base Interest Rate on the principal amount which
the undersigned intends to prepay, and
2) the return which Union Bank could obtain if it used
the amount of such prepayment of principal to
purchase at bid price regularly quoted U.S.
Securities having a maturity date most closely
coinciding with the relevant Base Rate Maturity Date
and such U.S. Securities were held by Union Bank
until the end of the relevant Interest Period
("Yield Rate").
24
(b) the above difference, if greater than zero, is multiplied
by
1) a fraction the numerator of which is the number of
days in the period between the date of prepayment
and the relevant Base Rate Maturity Date and the
denominator of which is 360 days.
(c) multiplied by
1) the lesser of the amount prepaid or 50% of the total
of the amount prepaid and the amount of principal
scheduled under the terms of this Note to be
outstanding at the Base Rate Maturity Date.
(d) the above product is then discounted to present value using
the Yield Rate as the annual discount factor.
In no event shall Union Bank be obligated to make any payment or refund
to the undersigned, nor shall the undersigned be entitled to any setoff or other
claim against Union Bank, should the return which Union Bank could obtain under
the prepayment formula exceed the interest that Union Bank would have received
if no prepayment had occurred.
Such prepayment fee, if any, shall also be payable if prepayment occurs
as the result of the acceleration of the principal hereof by Union Bank because
of any default hereunder by-the undersigned. If, following such acceleration,
all or any portion of the unpaid principal is satisfied, whether through sale of
the property encumbered by any security agreement or other agreement securing
this Note, if any, at a foreclosure held thereunder or through the tender of
payment at any time following such acceleration, but prior to such a foreclosure
sale, then such satisfaction of such portion of the principal shall be deemed an
evasion of the prepayment prohibition set forth above, and Union Bank shall,
automatically and without notice or demand, be entitled to receive, concurrently
with such satisfaction, the prepayment fee set forth above, and the obligation
to pay such prepayment fee shall be added to the principal hereof. THE
UNDERSIGNED HEREBY ACKNOWLEDGES AND AGREES THAT UNION BANK WOULD NOT LEND TO THE
UNDERSIGNED THE LOAN EVIDENCED BY THIS NOTE WITHOUT THE UNDERSIGNED'S AGREEMENT,
AS SET FORTH ABOVE IN THIS PARAGRAPH, TO PAY UNION BANK A PREPAYMENT FEE UPON
THE SATISFACTION OF ALL OR ANY PORTION OF THE PRINCIPAL BEARING INTEREST AT A
BASE INTEREST RATE FOLLOWING THE ACCELERATION OF THE MATURITY DATE HEREOF BY
REASON OF A DEFAULT HEREUNDER. THE UNDERSIGNED HAS CAUSED THOSE PERSONS SIGNING
THIS NOTE ON THE UNDERSIGNED'S BEHALF TO SEPARATELY INITIAL THE AGREEMENT
CONTAINED IN THIS PARAGRAPH BY PLACING THEIR INITIALS BELOW:
INITIALS: ________________ _______________ _______________
3. All prepayments shall include payment of accrued interest on the
principal amount so prepaid and shall be applied to payment of
interest before application to principal. A determination by Union
Bank as to the amount, if any, payable
25
pursuant to this section, shall be made in accordance with the
provisions herein.
E. DEFAULT
1. The occurrence or existence of any one or more of the following
shall constitute a default hereunder:
(a) The failure of undersigned to make any payment required
under this Note when due; or
(b) Any breach, misrepresentation or other default (after
expiration of any applicable notice or cure period) by undersigned
or any maker, co-maker, endorser or guarantor (hereafter
individually and collectively referred to as "Obligor") under any
deed of trust, security agreement, guaranty or other document or
agreement securing or pertaining to this Note, as any of the same
may be amended, modified, supplemented or extended from time to
time (individually and collectively the "Related Documents"), or
any breach, misrepresentation or other default by undersigned or
any Obligor (after expiration of any applicable notice or cure
period) under the Related Documents or agreement between Bank and
undersigned or any Obligor which is not a Related Document,
including without limitation the failure of undersigned or any
Obligor to pay any other indebtedness to Bank when due; or
(c) The undersigned or any Obligor shall (i) apply for or
consent to the appointment of a receiver, trustee, liquidator or
custodian of itself or of all or a substantial part of its
property, (ii) be unable, or admit in writing its inability, to
pay its debts generally as they mature, (iii) make a general
assignment for the benefit of its or any of its creditors, (iv) be
dissolved or liquidated in full or in part, (v) commence a
voluntary case or other proceedings seeking liquidation,
reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or
hereafter in effect or consent to any such relief or to the
appointment of or taking possession of its property by any
official in an involuntary case or other proceeding commenced
against it, or (vi) take any corporate or partnership action for
the purpose of effecting any of the foregoing; or
(d) There shall be commenced proceedings for the
appointment of a receiver, trustee, liquidator or custodian of the
undersigned or any Obligor or of all or a substantial part of the
property thereof, or an involuntary case or other proceedings
seeking liquidation, reorganization or other relief with respect
to undersigned or any Obligor or the debts thereof under any
bankruptcy, insolvency or other similar law now or hereafter in
effect which case or proceedings are not
26
dismissed within sixty (60) days after the filing thereof; or
(e) The filing or recording against the undersigned or any
Obligor, or the property of the undersigned or any Obligor, of any
notice of levy, notice to withhold or other legal process for
taxes other than property taxes, or the issuance against
undersigned or any Obligor, or the property of undersigned or any
Obligor, of any writ of attachment, execution or other judicial
lien in an amount exceeding Fifteen Thousand Dollars ($15,000),
which notice of levy or writ of attachment is not dismissed within
thirty (30) days after the filing or recording thereof; or
(f) The failure of undersigned or any Obligor to comply
with any final order, judgment, injunctions, decree, writ or
demand of any court or other public authority having a material
effect on the financial condition of Obligor; or
2. Immediately and without notice upon the occurrence of a default
specified in Section E(l)(c), (d) or (e) hereof, or, at the option
and upon the declaration of the holder of this Note, upon the
occurrence of any other default hereunder, the entire balance of
principal, accrued interest and other amounts then remaining
unpaid hereunder and under the Related Documents shall immediately
become due and payable, without presentment, demand, protest, or
notice of any kind, all of which are hereby expressly waived, and
the holder hereof may immediately, and without the expiration of
any period of grace (other than such periods of grace, if any, as
may be expressly set forth herein or in the Related Documents),
enforce payment of such obligations of Debtor and exercise any and
other rights and remedies granted to it hereunder, under any of
the Related Documents, or at law, in equity or otherwise.
3. If this Note is not paid when due (whether by acceleration or
otherwise), the undersigned promises to pay all costs of
collection, including but not limited to reasonable attorneys'
fees (which may include the reasonable allocation of costs and
expenses of any in-house attorneys and legal staff), incurred by
the holder hereof on account of such collection, whether or not
suit is filed hereon. 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 and
extensions thereof) securing or pertaining to this Note, without
notice or demand, the entire balance of principal and accrued
interest then remaining unpaid shall become immediately due and
payable and thereafter bear interest, until paid in full, at a
rate five percent (5%) greater than the interest rate contracted
for herein or at a rate which is five percent (5%) greater than
the Reference Rate, as
27
it may vary from time to time, whichever is higher.
F. MISCELLANEOUS
1. Undersigned agrees that all notations made by Bank in such account
or accounts shall constitute prima facie evidence of the matters
noted.
2. This Note and the provisions contained herein may not be changed,
modified or amended except by a written instrument executed by
both undersigned and the holder hereof.
3. The undersigned submits to the jurisdiction of any competent court
within San Diego County, California, both with respect to its
person and to its property, and to service or process upon each of
them by any means authorized by California law.
4. This Note, the Related Documents, and all transactions
contemplated hereunder and/or evidenced hereby shall be subject
to, governed by and construed according to the laws of, the State
of California.
5. The captions or headings in this Note are for convenience of
reference only, are not intended to constitute any part of its
body or text, and shall not be used or considered in any respect
in the construction or interpretation of this Note.
6. If any provision of this Note is found to be illegal, invalid or
unenforceable, such provision shall be fully severable, this Note
shall be construed as if such provision had never been a part
hereof; and, the remaining provisions of this Note shall remain in
full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by severance from this Note.
7. This Note is secured by a deed of trust (as amended) to UNION
BANK, a California corporation, as Trustee, and shall be governed
and construed in accordance with California law. The Deed of Trust
securing the obligation evidenced hereby contains the following
provision: "that should trustor sell, convey, transfer, dispose of
or further encumber said property or any part thereof or any
interest therein, or enter into a lease covering all or a portion
thereof or an undivided interest therein, either voluntary,
involuntarily or otherwise, or enter into an agreement so to do,
without the prior written consent of Beneficiary being first had
and obtained, then Beneficiary
28
may, at its option, declare all sums secured hereby immediately
due and payable. Consent to one such transaction shall not be
deemed to be a waiver of the right to require such consent to
future or successive transactions."
8. This Note amends and restates that certain Note Secured by Deed of
Trust (Floating Rate Note) dated September 1, 1989, in the
original principal amount of $17,500,000, executed by Westerra
Pacific Associates, a California general partnership in favor of
Union Bank, a California corporation.
JAYCOR, a
California corporation
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Its: VP-Finance
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Its: Corporate Secretary
29
LOAN AMORTIZATION SCHEDULE
300 9.000% 15,182,645.00
TERM INTEREST ORIGINAL
MONTHS RATE PRINCIPAL PAYMENT PRINCIPAL
--------------------------------------------------------------------------------
DUE DATE INSTALLMENT PRINCIPAL
DATE PAID NUMBER INTEREST PRINCIPAL BALANCE
--------------------------------------------------------------------------------
1 13,542.37 15,169,102.63
2 13,643.93 15,155,458.70
3 13,746.26 15,141,712.43
4 13,849.36 15,127,863.07
5 13,953.23 15,113,909.84
6 14,057.88 15,099,851.96
7 14,163.32 15,085,688.64
8 14,269.54 15,071,419.10
9 14,376.56 15,057,042.54
10 14,484.39 15,042,558.16
11 14,593.02 15,027,965.14
12 14,702.47 15,013,262.67
13 14,812.73 14,998,449.94
14 14,923.83 14,983,526.11
15 15,035.76 14,968,490.35
16 15,148.53 14,953,341.82
17 15,262.14 14,938,079.68
18 15,376.61 14,922,703.07
19 15,491.93 14,907,211.14
20 15,608.12 14,891,603.02
21 15,725.18 14,875,877.84
22 15,843.12 14,860,034.72
23 15,961.94 14,844,072.77
24 16,081.66 14,827,991.11
25 16,202.27 14,811,788.84
26 16,323.79 14,795,465.05
27 16,446.22 14,779,018.84
28 16,569.56 14,762,449.27
29 16,693.84 14,745,755.44
30 16,819.04 14,728,936.40
31 16,945.18 14,711,991.22
32 17,072.27 14,694,918.95
33 17,200.31 14,677,718.63
34 17,329.31 14,660,389.32
35 17,459.28 14,642,930.03
36 17,590.23 14,625,339.81
37 17,722.16 14,607,617.65
38 17,855.07 14,589,762.58
39 17,988.99 14,571,773.59
40 18,123.90 14,553,649.69
-------
INITIAL
HERE
[SIG]
-------
EXHIBIT "A"
30
LOAN AUTHORIZATION SCHEDULE
300
TERM 9.000% 15,182,645.00
MONTHS INTEREST RATE PRINCIPAL PAYMENT PRINCIPAL
------------------------------------------------------------------------------
DUE DATE INSTALLMENT PRINCIPAL
DATE PAID NUMBER INTEREST PRINCIPAL BALANCE
------------------------------------------------------------------------------
41 18,259.83 14,535,389.86
42 18,396.78 14,516,993.08
43 18,534.76 14,498,458.32
44 18,673.77 14,479,784.55
45 18,813.82 14,460,970.73
46 18,954.92 14,442,015.81
47 19,097.09 14,422,918.72
48 19,240.31 14,403,678.41
49 19,384.62 14,384.293.79
50 19,530.00 14,364,763.79
51 19,676.48 14,345,087.31
52 19,824.05 14,325,263.26
53 19,972.73 14,305,290.53
54 20,122.53 14,285,168.01
55 20,273.44 14,264,894.56
56 20,425.50 14,244,469.07
57 20,578.69 14,223,890.38
58 20,733.03 14,203,157.35
59 20,888.52 14,182,268.83
60 21,045.19 14,161,223.64
61 21,203.03 14,140,020.61
62 21,362.05 14,118,658.56
63 21,522.27 14,097,136.30
64 21,683.68 14,075,452.61
65 21,346.31 14,053,606.30
66 22,010.16 14,031,596.15
67 22,175.23 14,009,420.91
68 22,341.55 13,987,079.36
69 22,509.11 13,964,570.25
70 22,677.93 13,941,392.33
71 22,848.01 13,919,044.31
72 23,019.37 13,896,024.94
73 23,192.02 13,872,832.92
74 23,365.96 13,849,466.97
75 23,541.20 13,825,925.76
76 23,717.76 13,802,208.00
77 23,895.64 13,778,312.36
78 24,074.86 13,754,237.50
79 24,255.42 13,729,982.07
80 24,437.34 13,705,544.73
EXHIBIT "A"
31
LOAN AMORTIZATION SCHEDULE
100 9.000% 15.182,645.00
TERM INTEREST ORIGINAL
MONTHS RATE PRINCIPAL PAYMENT PRINCIPAL
-------------------------------------------------------------------------------------
DUE DATE INSTAL- INTEREST PRINCIPAL PRINCIPAL
DATE PAID MENT BALANCE
NUMBER
-------------------------------------------------------------------------------------
81 24,620.62 13,680,924.11
82 24,805.27 13,656,118.84
83 24,991.31 13,631,127.53
84 25,178.75 13,605,948.78
85 25,367.59 13,580,581.19
86 25,557.85 13,555,023.34
87 25,749.53 13,529,273.81
88 25,942.65 13,503,331.16
89 26,137.22 13,477,193.94
90 26,333.25 13,450,860.69
91 26,530.75 13,424,329.94
92 26,729.73 13,397,600.21
93 26,930.20 13,370,670.01
94 27,132.18 13,343,537.83
95 27,335.67 13,316,202.16
96 27,540.69 13,288,661.47
97 27,747.24 13,260,914.23
98 27,955.35 13,232,958.88
99 28,165.01 13,204,793.86
100 28,376.25 13,176,417.61
101 28,589.07 13,147,828.54
102 28,803.49 13,119,025.05
103 29,019.52 13,090,005.53
104 29,237.16 13,060,768.37
105 29,456.44 13,031,011.93
106 29,677.37 13,001,634.56
107 29,899.95 12,971,734.62
108 30,124.20 12,941,610.42
109 30,350.13 12,911,260.30
110 30,577.75 12,880,682.54
111 30,807.09 12,849,875.46
112 31,038.14 12,818,837.32
113 31,270.92 12,787,566.39
114 31,505.46 12,756,060.94
115 31,741.75 12,724,319.19
116 31,979.81 12,692,339.38
117 32,219.66 12,660,119.72
118 32,461.31 12,627,658.41
119 32,704.77 12,594,953.65
120 32,950.05 12,562,003.59
-------
INITIAL
HERE
[SIG]
-------
EXHIBIT "A"
32
HAZARDOUS MATERIALS INDEMNITY
Re: Loan No. 4160669-343-900343
Amount $15,182,645.00
As additional consideration to Union Bank for the making of this loan, the
undersigned represent and warrant as follows:
1. Definitions:
A. Hazardous Materials: substances defined as "hazardous substances,"
"hazardous material," "contaminants," "pollutants," "hazardous wastes" or "toxic
substances" (A) in (1) the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act, 42 U.S.C. Section 9601 et seq., (2) the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801 et seq., (3) the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., (4) the Federal
Water Pollution Control Act, as amended, 33 U.S.C. Section 1251, et seq., (5)
the Clean Air Act, 33 U.S.C. Section 7401 et seq., (6) the Toxic Substances
Control Act, 15 U.S.C. Section 2601 et seq., (7) the Safe Drinking Water Act, 42
U.S.C. section 300f et seq., (8) applicable state or local law, or (9) the
rules, orders or regulations adopted or proposed or in the publications
promulgated pursuant to said laws; or (B) in any reported decision of a state or
federal court.
B. Preliminary Site Assessment: a report (and all amendments,
modifications, updates and reviews thereof) on the presence of Hazardous
Materials on, in, under or about the Property issued by or reviewed and approved
by an entity knowledgeable in environmental matters acceptable to Bank, in form
and content acceptable to Bank and delivered or caused to be delivered to Bank
by Borrower at Borrower's cost and expense.
C. Loan: That certain Loan granted to Borrower by Union Bank, the
proceeds of which are being disbursed pursuant to those loan disbursement
instructions to which this Rider is attached.
D. Property: That certain Real Property described in the Trust Deed
collateralizing the Loan.
2. Hazardous Materials: Except as may be set forth in the Environmental Audit
dated June 16, 1989, prepared by Tetra Tech, Inc., Borrower hereby warrants and
represents that to the best of Borrower's actual knowledge, the Property is not
now and shall not at any time in the future be in violation of any federal,
state or local law, ordinance or regulation relating to environmental conditions
on, under or about the Property including, but not limited to, soil and
groundwater conditions. Until the loan is repaid in full, neither Borrower, any
successor in interest to Borrower, nor any tenant of Borrower or such successor
in interest shall use, generate, manufacture, refine, produce, process, store or
dispose of on, under or about the Property or transport to or from the Property
any Hazardous Materials, (as defined in 1.A., above,) in contravention of any
applicable law, rule, regulation or order (collectively, "Hazardous Waste Law"),
of nor does Borrower intend to use the Property in the future for the purpose of
generating, manufacturing, of
33
refining, producing, storing, handling, transferring, processing, or
transporting of Hazardous Materials, in contravention of any Hazardous Waste
Law.
3. Removal of Hazardous Materials: If at any time during the term of this Loan,
Hazardous Materials are discovered, used, or placed on the Property in violation
of any Hazardous Waste Law, Borrower, at Borrower's sole cost and expense, shall
remove such Hazardous Materials from the Property or the groundwater underlying
the Property in accordance with requirements of the appropriate governmental
entity. In addition to all other rights and remedies of Bank hereunder, if such
Hazardous Materials are not removed from the Property or the groundwater
underlying the Property by Borrower within ninety (90) days after Borrower
discovers such Hazardous Materials, Bank, at its sole discretion, may pay to
have same removed and Borrower shall reimburse Bank within five (5) days of
Bank's demand for payment. Borrower shall indemnify and hold Bank harmless from
and against all loss, damage, liability (including all foreseeable and
unforeseeable consequential damages) and expense (including without limitation,
the cost of any required cleanup of the Hazardous Materials and all attorneys'
fees and expenses incurred by Bank in connection therewith) which Bank may
sustain as a result of the presence or cleanup of Hazardous Materials on the
Property in violation of any Hazardous Waste Law.
4. Survival: All representations, warranties and indemnities with respect to
Hazardous Materials shall survive the repayment of the Loan.
5. Access to the Property: At all reasonable times prior to the payment in full
of the unpaid principal balance of the Loan and all accrued but unpaid interest
thereon, Union shall have the right to access to the Property for itself and its
representatives and to inspect the Property and the physical condition thereof,
to take sample from the soil and the components of the improvements included
within the Property, to review Borrower's books and records wherever situated
with respect to the Property, to interview Borrower's employees, officers and
tenants, and to conduct other similar activities on the Property. During said
period, Borrower shall furnish to Union such statements and other financial data
as Union shall from time to time request. Union acknowledges that its access to
the Property is subject to all applicable governmental security regulations
concerning access to the Property.
Date: February 3, 1993
BORROWER: UNION BANK, a
JAYCOR, a California corporation California corporation
/s/ Xxxxx Xxxxxxx By: /s/
-------------------------------- --------------------------------
/s/ Xxxxxxx Xxxxxxx By: /s/
-------------------------------- --------------------------------
34
DOC # 1993-0080856
RECORDING REQUESTED BY CONTINENTAL LAWYERS TITLE 08-FEB-1993 11:53 AM
RECORDING REQUESTED BY AND 1518 OFFICIAL RECORDS
WHEN RECORDED MAIL TO: XXX XXXXX XXXXXX XXXXXXXX'X XXXXXX
XXXXXXX XXXXX, XXXXXX RECORDER
JAYCOR, a RF: 4.00 FEES: 8.00
California corporation AF: 3.00
0000 Xxxxx Xxxxxx Xxxxx MF: 1.00
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Mr. Xxxxx Xxxxxxx
170191-02
------------------SPACE ABOVE THIS LINE FOR RECORDER'S USE----------------------
RELEASE OF ASSIGNMENT OF REAL PROPERTY LEASE
For value received, Union Bank, a California corporation, does hereby
release that certain Assignment of Real Property Lease executed by Westerra
Pacific Associates, a California General Partnership, in favor of Union Bank,
dated December 7, 1988, recorded in the office of Recorder of San Diego County
on September 11, 1989 as Instrument No. 89-488386, said assignment having been
terminated.
Dated: February 3, 1993 .
------------------------
UNION BANK, a
California corporation
By: /s/ XXXX XXXXXXX
---------------------------------
Xxxx Xxxxxxx
Its: Vice President
-----------------------------
By: /s/ XXXXX XXXXXXX
---------------------------------
Xxxxx Xxxxxxx
Its: AVP
-----------------------------
35
State of California ) CAPACITY CLAIMED BY SIGNER
-----------------
County of San Diego ) [ ] INDIVIDUAL(S)
---------------- [X] CORPORATE
On 2/4/93 before me, Xxxxx X. Xxxxxx, Notary Public , Vice President
-------- -------------------------------------------------------- -----------------------
Date NAME, TITLE OF OFFICER - E.G., "XXXX XXX, NOTARY PUBLIC" OFFICER(S) Asst. Vice President
-----------------------
personally appeared Xxxx Xxxxxxx and Xxxxx Xxxxxxx , TITLE(S)
-----------------------------------------------------------
NAME(S) OF SIGNER(S) [ ] PARTNER(S)
[ ] ATTORNEY-IN-FACT
[X] personally known to me - OR - [ ] proved to me on the basis of [ ] TRUSTEE(S)
satisfactory evidence to be the person(s) [ ] SUBSCRIBING WITNESS
whose name(s) is/are subscribed to the [ ] GUARDIAN/CONSERVATOR
within instrument and acknowledged to me [ ] OTHER:
that they executed the same in ---------------------
their authorized capacity(ies), and ---------------------------
[SEAL] that by their signature(s) on the ---------------------------
instrument the person(s), or the entity upon
behalf of which the person(s) acted, SIGNER IS REPRESENTING:
executed the instrument. NAME OF PERSON(S) OR ENTITY(IES)
Witness my hand and official seal.
Union Bank
/s/ XXXXX X. XXXXXX --------------------------------
-------------------------------------------- --------------------------------
SIGNATURE OF NOTARY --------------------------------
----------------------------------------------------------------------------------------------------------------------------------
ATTENTION NOTARY: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment on this certificate
to unauthorized document.
THIS CERTIFICATE Title or Type of Document Release of Assignment of Real Property Lease
MUST BE ATTACHED ---------------------------------------------------------------------------------
TO THE DOCUMENT Number of Pages Date of Document February 3, 1993
DESCRIBED AT RIGHT: ------------------------------ ------------------------------------------
Signer(s) Other Than Named Above
--------------------------------------------------------------------------
2
36
BUILDING LOAN AGREEMENT - DISBURSEMENT SCHEDULE
THIS BUILDING LOAN AGREEMENT is made as of this 1st day of September, 1989, by
and between Westerra Pacific Associates, a California General Partnership
("Borrower") and UNION BANK, a California bank corporation, ("Bank").
DEFINITION OF TERMS USED IN THIS AGREEMENT:
1.1. BORROWER'S ARCHITECT: The person or firm employed by Borrower to
design the improvements and/or supervise the Construction thereof, i.e. Xxxxx
Xxxx and Associates.
1.2 BORROWER'S FUNDS: The sum of $N/A to be made available to Borrower in a
form satisfactory to Bank prior to recordation for disbursement in the manner
and for the purposes herein described. If Bank so requests, said funds shall be
deposited to Borrower's Funds, Building Loan Account.
1.3 COMPLETION DATE: The date of required completion of construction of
the improvements and issuance of all licenses and permits necessary for the
occupancy, use or sale thereof, which is April 1991.
1.4 GENERAL CONTRACTOR: _____________________________________
1.5 GUARANTOR: The Guarantor of obligations evidenced by the Note, i.e.
Xxxxxx X. Xxxxxxx, Xx. and X. Xxxxxxx Xxxxxxxx.
1.6 LOAN: The amount evidenced by the Note, i.e.: $17,500,000.00.
1.7 LOAN FEE: The fee to be paid to Bank in consideration for Bank's
agreeing to make the Loan and entering into this Agreement, which fee shall
not be subject to reduction or be refundable under any and all circumstances,
and which fee is the sum of $180,000.00, payable upon Recordation.
1.8 PERMANENT LENDER: N/A
1.9 PERMANENT COMMITMENT EXPIRATION DATE: N/A
1.10 IMPROVEMENTS: 103,800 S.F. R&D Office Building
1.11 CUMULATIVE CHANGE ORDER AMOUNT: $250,000.00 cumulative, $25,000.00 per
event.
1.12 TITLE INSURER: The issuer of the title insurance policy required by
paragraph 8.3., i.e. Founders Title Company.
1.13 BORROWER'S FUNDS, BUILDING LOAN ACCOUNT: A special non-interest
bearing account into which Borrower's Funds, when requested by Bank, shall be
deposited pending disbursement in the manner and for the purpose herein
described. Borrower's Funds deposited in this account shall be first disbursed.
1.14 BORROWER'S INTEREST: The rate of interest to be paid to Bank in
respect to the Loan set forth in the Note.
1.15 CERTIFIED INVOICE: A Certified Invoice for Progress Payments as
customarily used by Bank, a copy of which has been delivered by Bank to
Borrower concurrently with the execution hereof, receipt of a copy of which
Borrower hereby acknowledges, or its equivalent acceptable to Bank.
1.16 CHANGE ORDERS: Any amendments or modifications to the General contract
or any subcontract.
1.17 COMPLETION AGREEMENT: An agreement on Bank's form guaranteeing
completion of the improvements.
1.18 COST BREAKDOWN: An itemized schedule on a component, unit and made
breakdown basis covering all costs of constructing and completing the
improvement, to be submitted to and approved by Bank, with such changes herein
subsequent as Borrower deems necessary or desirable so long as Bank shall have
received evidence satisfactory to it that (i) the change in such Cost breakdown
is reasonably necessary, and (ii) in the opinion of Bank, there remains
sufficient funds in the undisbursed portion of the Loan and of Borrower's Funds
designated herein and allocated on the Disbursement Schedule for the costs of
construction of the improvements to pay for all remaining costs of completion
of construction of the improvements.
1.19 DEFAULT INTEREST: The rate of interest specified in the Note which
shall be in effect in the event of default hereunder.
1.20 DISBURSEMENT SCHEDULE: The schedule of disbursement of the proceeds of
the Loan and of any Borrower's Funds as set forth on Exhibit "A" attached
hereto and made a part hereof.
1.21 FINANCIAL STATEMENTS: Financial statements of the Borrower and
Guarantor and such other entity required by Bank including Operating
Statements, Balance Sheet and such other financial reports that Bank may
require.
1.22 GENERAL CONTRACT: The contract between Borrower and General Contractor
for construction of the improvements.
1.23 GOVERNMENTAL AUTHORITY: The authority of the United States, the State
in which the Premises are located, any political subdivision thereof, any city
and any agency, department, commission, board, bureau or instrumentality of any
of them.
1.24 GOVERNMENTAL REQUIREMENT OR LOCAL REQUIREMENT: Any law, ordinance,
order, rule or regulation of a Governmental Authority or Local Authority,
respectively.
1.25 GUARANTY: The guaranty, if any, executed by the person or persons
named herein as Guarantor, which guarantees the performance of Borrower's
obligations specified herein.
1.26 INITIAL CLOSING: The time of the execution and delivery hereof by
Borrower and Bank.
1.27 INITIAL DISBURSEMENT: The payment upon Recordation of costs, charges,
expenses and items associated with the Loan as set forth in paragraph ??.
1.28 LOCAL AUTHORITY: Any Governmental Authority which exercises
jurisdiction over the Property or construction thereon.
1.29 MAJOR LEASES: Those Leases, if any, described on Exhibit "B" attached
hereto and made a part hereof.
1.30 NOTE: The Note of even date herewith executed by Borrower as maker and
payable to Bank on order, in the principal amount of the Loan.
1.31 PERMANENT CLOSING: Either (i) the sale of the Note and Trust Deed to,
and the purchase hereof by, the Permanent Lender, including the execution by
Borrower of a modification and extension agreement satisfactory to Permanent
Lender, or (ii) he satisfaction of the Note and Trust Deed, in whole or in part,
in connection with the consummation of a loan or loans to the Borrower or others
contemplated by the Permanent Loan Commitment, including the execution and
delivery of a new note or notes and a trust deed or trust deeds satisfactory to
the Permanent Lender, with Bank to receive, in either case, in immediately
available funds, all or that portion of the principal amount of the Note to be
received pursuant to the agreed upon release price together with accrued
interest to the date of such receipt. 1.40 and 1.41. See Hazardous Materials
Rider attached hereto and incorporated herein by this reference.
1.32 PERMANENT COMMITMENT: The commitment of the Permanent Lender, if any,
to provide financing to the Borrower or others upon completion of construction
of the improvements which constitutes a material source to Bank for repayment
of the Loan.
1.33 PERSONAL PROPERTY: That property described in the Security Agreements
and which is collateral for the Loan.
1.34 PLANS: The final plans and specifications (including the General
Conditions set forth by he FHA, VA or American Institute of Architects
whichever is appropriate or whichever is incorporated in the specifications or
other General Conditions acceptable to Bank and any addenda thereto) for the
construction of the improvements prepared by Borrower's Architect, and approved
as required herein and all amendments and modifications thereof made by
approved Change Orders.
1.35 PROPERTY: That certain Real Property legally described in the Trust
Deed and on which the improvements are to be constructed.
1.36 RECORDATION: The act of recording the Trust Deed in the official
records of the County in which the Property is situated.
1.37 SECURITY AGREEMENTS: Any agreements, other than the Trust Deed,
securing the Loan, the performance hereunder and interest, costs and charges
associated therewith.
1.38 TENANT IMPROVEMENTS: That portion of the improvements which will be
constructed to conform to the requirement of individual tenants leasing
premises situated in the improvements, or to conform to the requirements of
individual purchasers of portions of the improvements.
1.39 TRUST DEED: The Mortgage or Deed of Trust in favor of Bank of every
date herewith encumbering the Property and given to secure the Note.
2. LOAN:
2.1 Borrower has applied to Bank for the Loan to finance
construction of the improvements and for other costs related thereto.
2.2 Bank and Borrower agree that Bank shall make the Loan to
Borrower and Borrower shall accept the Loan upon the terms, conditions,
covenants, representations and warranties contained herein. All Loan funds
disbursed hereunder shall be evidenced by the Note, bear interest at the rate
of Borrower's Interest or Default Interest, as the case may be, and be secured
by the Trust Deed and the Security Agreements.
3. LOAN PROCEEDS: All loan proceeds of the Loan available for disbursement
pursuant to this agreement with Borrower's Interest or Default Interest, as the
case may be, to accrue thereon with respect to each disbursement on and after
the date such disbursement is made. Until disbursed, such proceeds shall
neither bear nor earn interest.
4. CONDITIONS PRECEDENT TO RECORDATION: Prior to Recordation the following
conditions shall have been satisfied:
4.1 BANK SHALL HAVE RECEIVED:
4.1.01 the executed Note;
4.1.02 the executed Trust Deed;
4.1.03 executed Security Agreements;
4.1.04 original insurance policies or certificates thereof for the
insurance required by paragraph 8.12 hereof;
4.1.05 Preliminary Time Report issued by Title Insurer showing the
condition of Title to the Property with the Property's legal description
and a copy of all documents listed as Exceptions to said Report; and
4.1.06 all Borrower's Funds required.
4.2 IF REQUIRED BY BANK AS INDICATED BY AN "X" IN THE BOX OPPOSITE THE
REQUIRED ITEM, BANK SHALL HAVE RECEIVED:
/X/ 4.2.01 Executed Guaranty;
4.2.02 a current survey of the Property including dimensions,
delineations and locations of all easements thereon, satisfactory to
the Title Insurer if required by it;
1.42 ADMINISTRATIVE COSTS: All costs related to the improvements other than
costs of the General Contract or any subcontract.
37
[COPY ILLEGIBLE @ 1/2 OF FIRST COLUMN]
5. CONDITIONS PRECEDENT TO DISBURSEMENT
5.1 PRIOR TO INITIAL DISBURSEMENT THE FOLLOWING CONDITIONS SHALL
HAVE BEEN SATISFIED:
5.1.01 Recordation shall have occurred.
5.1.02 Title Insurer shall have issued or agreed to issue the
title policy described in paragraph 8.3 hereof, naming Bank as
insured-to the extent of the Loan amount.
5.1.03 Where appropriate, UCC-1 Financing Statements shall have
been filed with the Secretary of State for the state where the Property
is situated describing the Personal Property.
5.1.04 Bank shall have been furnished with a Certificate issued
by the filing officer of the Secretary of State for the state in which
the Property is situated showing Bank's Financing Statement as prior to
all other Financing Statements in Borrower's name relative to the
Personal Property.
5.1.05 If a bond has been required under paragraph 4.2.03, the
original General Contract shall have been filed and the bond so required
shall have been recorded in the Office of the County Recorder of the
county in which the Property is situated prior to the commencement of
work on the improvements.
5.2 PRIOR TO MAKING DISBURSEMENTS AFTER THE INITIAL DISBURSEMENT,
EXCEPT FOR THE LAST DISBURSEMENT, THE FOLLOWING CONDITIONS SHALL HAVE BEEN
SATISFIED:
5.2.01 Initial Disbursement shall have occurred.
5.2.02 No default shall exist under this Agreement, the Note,
Trust Deed or Security Agreements.
5.2.03 All the requirements for disbursement set forth in the
paragraph indicated under Part II of the Disbursement Schedule shall
have been satisfied.
5.2.04 If Bank requests, it shall have received a list of the
names and addresses of all material dealers, laborers and subcontractors
with whom agreements have been made by the General Contractor and/or
Borrower to deliver materials to and/or perform work on the
improvements.
5.2.05 The representations and warranties of Borrower made in
paragraph 7 hereof shall be true and correct on and as of the date of
the disbursement with the same effect as if made on such date.
5.2.06 The Improvements shall not have been materially injured
or damaged by fire or other casualty unless Bank shall have received
insurance proceeds sufficient in its judgment to effect the satisfactory
restoration of the Improvements and to permit the completion thereof
prior to the Completion Date.
5.2.07 Borrower shall have deposited with Bank cash in the
amount, estimated by Bank necessary to pay for the costs of completion
of construction of the Improvements to the extent that the aggregate
amount of the undisbursed Loan Proceeds and Borrower's Funds, designated
for the payment of the remaining costs to be incurred in the completion
of construction of the Improvements is, in the opinion of the Bank,
insufficient therefor.
5.2.08 Advice from Bank's inspection Department to the effect
that, to date, that the present state of construction of the
Improvements will, barring then unforeseen and unknown delays, permit
completion of construction of the Improvements on or before the
Completion Date.
5.2.09 Bank shall have received: (a) the Building Permit and
any other authorization, if any, which may be required from the Local
Authority or Governmental Authority; (b) The first page of a copy of the
Plans signed and all other, pages initiated by the Borrower, Bank,
General Contractor, Permanent Lender and any tenant under a Major Lease
if required by Bank; (c) A copy of the General Contract, or, if none,
copies of major contracts; (d) Assignments to Bank on Bank's form of the
plans and written consent thereto by the person or firm that prepared
them and a copy of the architect's agreement, if any, together with
assignment thereof to Bank on Bank's form, with written consent thereto
by said architect (e) Assignment to Bank of the General Contract and
consent thereto by the General Contractor; (f) The cost breakdown; and
(g) Original executed Major Leases and an assignment thereof to Bank on
Bank's form.
5.2.10 If Bank so requests, (a) The Title Insurer shall have
agreed to issue its continuation endorsement to Bank indicating that
since the last preceding disbursement to Borrower or General Contractor,
there has been no change in the state of title, that there are no
intervening liens which may now or hereafter take priority over the
disbursement to be made and that there are no survey exceptions not
theretofore approved by Bank; (b) Upon completion of the foundation(s)
Title Insurer has issued its foundation endorsement insuring Bank that
the foundation(s) is constructed wholly within the boundaries of the
Property and does not encroach on any easements nor violate any
covenants, conditions or restrictions of record.
5.2.11 *
5.3 PRIOR THE LAST DISBURSEMENT, THE CONDITIONS SET FORTH IN
SUBPARAGRAPH 5.2 OF THIS PARAGRAPH SHALL BE SATISFIED AND IN ADDITION THE
FOLLOWING CONDITIONS SHALL HAVE BEEN SATISFIED BY BANK'S RECEIPT OF:
5.3.01 Advice from Bank's Inspection Department to the effect
that the Improvements have been completed in accordance with the Plans.
5.3.02 Evidence that Borrower has filed the Notice of
Completion of the Improvements necessary to establish commencement of
the shortest statutory period for the filing of mechanics' and
materialmen's liens.
5.3.03 CLTA Endorsement 101.6 issued by Title Insurer
subsequent to expiration of the period during which any lien for labor,
services or materials may be validly recorded against the Property or
the Improvements or such other endorsements to Bank's Title Insurance
Policy as Bank may require which shall insure that the Improvements have
been completed free of all mechanics' and materialmen's liens or claims
thereof.
5.3.04 Evidence of approval of completion of the Improvements
by Borrower if Borrower is not an owner builder.
5.3.05 Evidence of approval of completion of the Improvements
by FHA, VA, HUD or other Guarantor or purchaser, Permanent Lender and
Tenants under Major Leases as such approvals are deemed appropriate by
Bank.
5.3.06 If Tenant Improvements are to be installed by Borrower,
Bank shall have segregated sufficient funds, in Bank's judgment, from
the Undisbursed Loan Proceeds and the Borrower's Funds, to pay for such
Tenant Improvements.
6. LOAN DISBURSEMENT: The proceeds of the Loan and Borrower's Funds shall
be used only for the payment of costs of construction of the Improvements in
accordance with the Plans and other costs related thereto, as set forth on the
Disbursement Schedule, and shall be disbursed as follows:
6.1 INITIAL DISBURSEMENT: Immediately following Recordation, and
upon satisfaction of the conditions of paragraph 5.1 hereof, Bank shall disburse
in accordance with the Disbursement Schedule the amounts necessary to pay all
costs, charges and expenses incurred or to be incurred (as estimated by Bank) in
connection with the Loan or payable pursuant to this Agreement, the Trust Deed
or Security Agreements, excluding direct costs of labor and materials related to
the Improvement, and including but not limited to loan fees (which are deemed
earned at Recordation and are not refundable in whole or part), service charges,
title charges, tax and lien service charges, recording fees, escrow fees,
appraisal fees, legal fees, real property taxes and assesments, insurance
premiums, less payable in connection with any commitment to provide permanent
financing of the Improvements, and any amount required to pay existing
encumbrances affecting the Property and amounts required to complete the
purchase of the Property.
6.2 SUBSEQUENT DISBURSEMENTS: Upon satisfaction of the conditions of
paragraph 5.2 hereof, Bank shall disburse directly to Borrower or, at Bank's
option, directly to General Contractor or to such persons as have actually
supplied labor, material or services in connection with or incidental to the
constructions of the Improvements for for the payment of the cost of any of
Borrower's undertakings hereunder, in the Note, the Trust Deed or the Security
Agreements), such sums as are required for the payment of interest on the Loan,
costs and expenses of construction of the Improvements and disbursements shall
be made in accordance with the applicable provisions of the Disbursement
Schedule. All funds disbursed hereunder to Borrower shall be received by
Borrower in trust and Borrower agrees that the same shall be used only for the
payment of those items contemplated by the particular disbursement.
6.3 FINAL DISBURSEMENT: The Final Disbursement shall be the payment
of any monies retained from Progress Payments or draws as set forth in the
Disbursement Schedule. Subject to the provisions of this Agreement, the final
disbursement shall be made only after Borrower has satisfied the conditions of
paragraph 5.3 hereof and delivered or caused to be delivered to Bank in addition
to those required under paragraph 8.3 hereof, such additional endorsements or
such additional policies of title insurance with endorsements thereto as Bank
may require, with a liability limit of not less than the principal amount of the
Note issued by Title Insurer, with coverage and in form satisfactory to Bank
insuring Bank's interest under the Trust Deed as a first lien on the property,
excepting only such items as shall have been approved in writing by Bank.
However, Bank may withhold the final disbursement until Borrower has furnished
Bank with the written approval of such final disbursement by Title Insurer and
the surety on any bond required by Bank.
6.4 DISBURSEMENT LIMITS:
6.4.01 Bank shall not be required to disburse an aggregate amount of
the Loan proceeds for labor furnished to and materials incorporated into
the Improvements during any stage of construction which exceeds the
lesser of the value of such labor or materials or the amount allocated
to that stage of construction as set forth in the Disbursement Schedule,
and in any event, Bank shall not be required to disburse any amount
which, in Bank's opinion, will reduce that portion of the Undisbursed
Loan Proceeds designated for the cost of completion of construction of
the Improvements below that needed to pay for the labor and material
necessary to complete the Improvements. If Borrower consists of more
than one person or is a partnership or joint venture, Bank is authorized
to make disbursements to any one of such persons or to any partner or
joint venturer.
6.4.02 If Tenant Improvements are to be installed by Borrower, Final
Disbursement may be made notwithstanding the fact that the Tenant
Improvements have not been completed, but in such event the Final
Disbursement shall not include the funds segregated for payment of the
Tenant Improvements pursuant to paragraph 5.3.06 hereof. Disbursement of
funds to pay for Tenant Improvements shall be made in the same manner as
funds were disbursed for payment of the Improvements unless otherwise
indicated on
38
7. REPRESENTATIONS AND WARRANTIES OF BORROWER: Borrower represents and
warrants, which representations and warranties shall survive any
investigations, inspections or inquiries made by Bank or any of its
representatives or any disbursements made by Bank hereunder, then:
7.1 IF CORPORATION: If a corporation, it is duly organized and
validly existing, in good standing under the laws of the state of its
incorporation, has stock outstanding which has been duly and validly issued, is
qualified to do business, and is in good standing in the state in which the
property is situated with full power and authority to consummate the
transactions contemplated hereby.
7.2 IF PARTNERSHIP: If a Partnership, it is duly organized and
validly existing.
7.3 IF TRUST: If a Trust, it is duly organized, validly existing
and the trustees thereof are qualified to act as Trustee.
7.4 PLANS, DEFECTS: The Plans are satisfactory to borrower, have
been approved by guarantor and Permanent Lender, and to the extent required by
applicable law or any effective restrictive covenant, by all Local Authority
and the beneficiary of any such covenant respectivity; the Plans so approved
have been initialed by Borrower and General Contractor, if any, all
construction, if any, heretofore performed on the improvements has been
performed within the perimeter of the Property in accordance with the Plans and
any restrictive covenants applicable thereto; there are no structural defects
in the improvements, and no violation of any Local Requirement exists with
respect thereto.
7.5 FINANCIAL STATEMENTS: The Financial Statements heretofore
delivered to Bank are true and correct in all respects, have been prepared in
accordance with generally accepted accounting practice, fairly present the
respective financial conditions of the subjects thereof as of their respective
dates, no materially adverse change has occurred in the financial conditions
reflected therein since their respective dates and no additional borrowings
have been made by Borrower since the date thereof other than the borrowing
contemplated hereby or approved by Bank.
7.6 LITIGATION: There are no actions, suits or proceedings
pending, or to the knowledge of Borrower threatened against or affecting it,
the Property or Guarantor or involving the validity or enforceability of the
Trust Deed or the priority of the lien thereof, at law or in equity, or before
or by any Governmental Authority or Local Authority. To the Borrower's
knowledge it is not in default with respect to any order, writ, injunction,
decree or demand or any court or any Governmental Authority or Local Authority.
7.7 NO BREACH: The consummation of the transaction hereby
contemplated and performance of this Agreement. Trust Deed and Security
Agreements will not result in any breach of, or constitute a default under any
mortgage, deed of trust, lease, bank loan or security agreement, corporate
charter, by-laws or other instrument to which the Borrower is a party or by
which it may be bound or affected.
7.8 UTILITIES: All utility services necessary for the construction
of the improvements and the operation thereof for their intended purpose are
either available at the boundaries of the Property or all necessary steps have
been taken by Borrower and Local Authority to assure the complete construction
and installation thereof, including water supply storm and sanitary sewer
facilities, gas, electric, and telephone facilities.
7.9 CERTIFIED INVOICE: Each Certified invoice shall be true and
accurate and the submission of same or the receipt of the funds so requested
shall constitute a reaffirmation of the representations, warrants and
covenants contained herein.
7.10 OTHER LIENS: It has made no contract or arrangement of any
kind, the performance of which by the other party thereto would give rise to a
lien on the Property, except for its arrangements with Borrower's Architect, the
General Contractor or the Major Subcontractors if there is no General
Contractor.
7.11 ROADS: All roads necessary for the full utilization of the
improvements for their intended purposes have either been completed or the
necessary rights-of-way therefore have either been acquired by Local Authority
or have been dedicated to public use and accepted by Local Authority and all
necessary steps have been taken by Borrower and Local Authority to assure the
complete construction and installation thereof.
7.12 PERMANENT COMMITMENT: The Permanent Commitment is unmodified,
is in full force and effect, and all conditions to the effectiveness or
continuing effectiveness thereof required to be satisfied by the date hereof
have been satisfied.
7.13 MAJOR LEASES: The Major Leases, if any, are in full force and
effect, there are no defaults under any of the provisions thereof, and all
conditions to the effectiveness or continuing effectiveness thereof, required
to be satisfied as of the date thereof have been satisfied.
7.14 NO DEFAULT: There is no default on the part of Borrower under
this Agreement, Note or Trust Deed, and no event has occurred and is continuing
which with notice or the passage of time or either would constitute a default
under any thereof.
7.15 CC&R'S, ZONING: It has examined, is familiar with, and the
improvements will in all respects conform to and comply with all covenants,
conditions, restrictions, reservations and zoning ordinances affecting the
Property.
7.16 TITLE TO PERSONAL PROPERTY: Any personal property required by
Bank as additional security for the Note is vested in Borrower free and clear
of all liens, encumbrances and adverse claims and that the security interest of
Bank in the personal property shall be a first lien thereon.
7.17 OTHER FINANCING: It has not received other financing for
either the acquisition of the Property or the construction and installation of
the improvements except as has been specifically disclosed to and approved by
Bank prior to Recordation.
7.18 BORROWER'S POWERS: Borrower has full power and authority to
execute this Agreement, the Note, the Trust Deed and the Security Agreements
and to undertake and consummate the transaction contemplated hereby and
thereby, and to pay, perform and observe its conditions, covenants, agreements
and obligations herein and therein contained.
7.19 FINDER'S FEES: Borrower hereby warrants and represents that it
has not dealt with any person, firm or corporation who is or may be entitled to
any finder's fee, brokerage commission, loan commission or other sum in
connection with the execution of this Agreement, consummation of the
transactions contemplated hereby and the making of the Loan by Bank to
Borrower, and Borrower does hereby indemnify and agree to hold Bank harmless
from and against any and all loss, cost liability or expense, including
reasonable attorney's fees, Bank may suffer or sustain should such warranty or
representation prove inaccurate in whole or in part.
8. BORROWER'S COVENANTS: Borrower covenants and agrees until the full and
final payment of the Loan, unless Bank waives compliance in writing, that it
will:
8.1 BORROWER'S FUNDS: At the time and in amounts required by Bank,
deposit Borrower's Funds in the borrower's funds, Building Loan Account.
Borrower's funds shall be disbursed from such account in the manner provided in
paragraph 6 herein. Should it appear at any time that the total funds then held
by Bank are insufficient, in Bank's reasonable judgment, to provide the
financing for the completion of the Improvements. Borrower, within ten (10)
days following receipt of written demand by Bank for additional funds, shall
pay to Bank an amount equal to such deficiency as expressed in said demand for
deposit in the Borrower's Funds, Building Loan Account.
8.2 IMPROVEMENTS INSPECTION: Permits Bank,* or its representatives
(and Bank shall have the right) to enter upon the Property, inspect the
Improvements and all materials to be used in the construction thereof and to
examine the Plans and all detailed plans and shop drawings which are or may be
kept at the construction site and will cooperate, and cause the General
Contractor or, if none, the Major Subcontractors, to cooperate with Bank
Inspection by Bank of construction shall be for the purpose of protecting the
security of Bank and such inspection is in no way to be construed as a
representation that there is a compliance with the Plans or that the
construction is free from faulty material or workmanship.
8.3 TITLE INSURANCE: Deliver or cause to be delivered to Bank at
Recordation or within a reasonable time thereafter an ALTA LP-10 Policy of
Title Insurance or its equivalent, with a liability limit of not less than the
face amount of the Note, issued by Title Insurer, insuring Bank's interest
under the Trust Deed as a valid first lien on the Property, together with such
reinsurance or coinsurance agreements or endorsements to said policy as Bank
may require. Said policy shall contain only such exceptions from its coverage
as shall have been approved in writing by Bank. After Recordation, Borrower
shall at its own cost and expense, maintain the Trust Deed as a first lien on
the Property and deliver or cause to be delivered to Bank from time to time
such endorsements and policies.
8.4 CONSTRUCTION START: Not to commence construction of the
Improvements, including grading and site clearance, or undertake any act on the
Property prior to Recordation, the result of which would cause any mechanics' or
materialmen's lien thereafter filed to take priority over the lien of the Trust
Deed; and to cause construction of the Improvements to be commenced not more
than thirty (30) days after Recordation and thereafter to diligently prosecute
such construction so that the same will be completed, in any event, on or before
the Completion Date.
8.5 LEASES: Deliver to Bank an executed counterpart of all leases
of the Property whether executed before or after the date hereof.
8.6 CHANGE ORDERS: Not permit the performance of any work pursuant
to any Change Order, which when added to the cumulative amount of all Change
Orders previously agreed to by Borrower, will result in a change in the General
Contract price in excess of the Cumulative Change Order Amount unless it shall
have received the specific approval of Bank to such Change Order and provided
that the additional funds necessary to pay for such Change Orders are provided
as Borrower's Funds. Bank is hereby authorized to and shall disburse said funds
in accordance with the Disbursement Schedule for the payment of such Change
Orders upon completion of such changes to Bank's satisfaction.
8.7 GENERAL CONTRACTOR COVENANT: Require covenants from the
General Contractor to the same effect as the covenant made by Borrower in the
preceding paragraph hereof, and that General Contractor will, upon request,
deliver to Bank the names of all persons with whom General Contractor has
contracted or intends to contract for the construction of the Improvements or
for the furnishing of labor or materials therefor.
8.8 GENERAL CONTRACT ONLY: Not execute any contract or become
party to any arrangement for the performance of work on the Property except
with the General Contractor, if there is one. If there is no General
Contractor, Borrower shall only contract with Major Subcontractors approved by
Bank for the performance of work on the Property.
8.9 PERMANENT COMMITMENT: Comply with all conditions of the
Permanent Commitment and execute all documents necessary for the Permanent
Closing. Borrower agrees that the covenants contained in this paragraph are for
the benefit of and shall be directly enforceable by the Permanent Lender.
8.10 FOUNDATION COMPLETION: Notify Bank immediately on completion
of the foundation of the Improvements.
8.11 PERSONAL PROPERTY INSTALLATION: Not install materials,
personal property, equipment, or fixtures subject to any security agreement or
other agreement or contract wherein the right is reserved to any person, firm
or corporation to remove or repossess any such material, equipment or fixtures,
or whereby title to any of the same is not completely vested in Borrower at
time of installation, without Bank's written consent.
8.12 INSURANCE: Prior to any disbursement hereunder, procure and
deliver to Bank and thereafter maintain Policy or Policies of Insurance in form
and content and by an insurer or insurers satisfactory to Bank, including a
clause giving Bank a minimum of ten (10) days' notice if such insurance is
cancelled, as follows: (i) Fire Insurance in an amount not less than the face
amount of the Note or the insurable value of the Improvements, whichever amount
is lesser, with the normal conditions including fire, extended coverage,
vandalism, malicious mischief, course of construction endorsement and a loss
payable endorsement naming Bank as payee, (ii) Liability Insurance indicating
coverage satisfactory to Bank, (iii) Workers' Compensation Insurance, issued to
Borrower or to General Contractor, and (iv) Flood and/or Earthquake Hazard
Insurance, if required by Bank.
8.13 MAINTAIN RECORDS: Keep and maintain full and accurate accounts
and records of its operations according to generally accepted accounting
principles and practices for its type of business.
8.14 TAXES: Pay and discharge all lawful claims, including taxes,
assessments, and governmental charges or levies imposed upon it or its income
or profits or upon any properties belonging to it prior to the date upon which
penalties attach thereto; provided that Borrower shall not be required to pay
any such tax, assessment, charge, or levy, the payment of which is being
contested in good faith and by proper proceedings.
8.15 NOTIFICATION OF DEFAULT: Promptly notify Bank in writing of
the occurrence of any event of default under this agreement, the Note, the Trust
Deed or the Security Agreements or of any facts then in existence which would
become an event of default hereunder or thereunder upon the giving of notice or
the lapse of time or both.
8.16 PAYMENT OF COSTS: PAY ALL COSTS AND EXPENSES REQUIRED TO
SATISFY THE CONDITIONS OF AGREEMENT. WITHOUT LIMITATION OF THE GENERALITY OF
THE FOREGOING. BORROWER WILL PAY:
8.16.01 all taxes and recording expenses, including stamp taxes, if any.
8.16.02 the fees and commissions lawfully due to brokers in connection
with this transaction and hold Bank harmless from all such claims, and
8.16.03 the travel and living expenses of representatives of Bank and
Bank's counsel, in connection with their attendance at the Initial
Closing, the Permanent Closing or conferences with Borrower or its
representatives, agents or contractors if held other than at an office
of Bank. To the extent services are required of counsel in addition to
those normally and reasonably incident to the closing and assignment of
a loan of the character contemplated hereby, Borrower shall pay the
reasonable fees therefor.
8.17 NO CONVEYANCE OR ENCUMBRANCE: Not to sell, convey, transfer,
dispose of or further encumber the Property or the Improvements or any part
thereof or any interest therein or enter into a lease covering all or any
portion thereof or any undivided interest therein, either voluntarily,
involuntarily or otherwise, or enter into an agreement so to do without the
prior written consent of Bank being first had and obtained. All easements,
declarations of covenants, conditions and restrictions, and private or public
dedications affecting the Property shall be submitted to Bank for its approval
and such approval shall be obtained prior to the execution or granting of any
thereof by Borrower, accompanied by a drawing or survey showing the precise
location of each thereof.
8.18 COMPLIANCE WITH GOVERNMENT: Comply promptly with any
Governmental Requirement or Local Requirement.
* With the Exception of $175,000 to Westerra Capital
39
8.19 DILIGENT CONSTRUCTION: Cause the construction of the
improvements to be prosecuted with diligence and continuity and completed in
accordance with the Plans and meet all conditions of the Permanent Lender on or
before the Completion Date, free and clear of liens or claims for liens.
8.20 SATISFY CONDITIONS: Cause all conditions hereof to be
satisfied at the time and in the manner herein provided.
8.21 APPLICATION OF DISBURSEMENTS: Receive the disbursements to be
made hereunder as a trust fund for the purpose of paying the costs of
construction of the improvements and it will apply the same first to such
payment before using any part thereof for any other purpose.
8.22 APPROVAL: Borrower shall obtain and deliver to Bank evidence
of the approval by Local Authority, local Board of Fire Underwriters or its
equivalent and by all Governmental Authority of the improvements in their
entirety for permanent occupancy to the extent any such approval is a condition
of the lawful use and occupancy of the improvements.
8.23 PAID VOUCHERS: Deliver to bank, on demand, any contracts, bills
of sale, statements, receipted vouchers or agreements, under which Borrower
claims title to any materials, fixtures or articles incorporated in the
improvements.
8.24 DEFECT CORRECTIONS: Upon demand of Bank, correct any defect in
the improvements or any departure from the Plans not approved by Bank; the
advance of any Loan proceeds shall not constitute a waiver of Bank's right to
require compliance with this covenant with respect to any such defects or
departures from the Plans not theretofore discovered by, or called to the
attention of Bank.
8.25 CONTRACT CHANGES: Not without the prior written consent of
Bank permit any change in the Plans which, when added to the cumulative amount
of all increases in the General Contract price resulting from Change Orders
heretofore agreed to by Borrower, would result in a change in the general
contract price or in the cost of construction of the improvements in excess of
the Change Order Amount or to reduce the square foot area of the improvements,
the number of units therein, or, if an apartment or condominium project, of the
design and layout of any such units.
8.26 DEFAULT: At the option of Bank, the following shall constitute
events of default hereunder including, if Borrower consists of more than one
person, the occurrence of any of such events with respect to any one or more
said persons)
9.1 Any default in the performance of any covenant, condition, or
agreement set forth herein, in the Trust Deed. Note: Security Agreements or in
any ground lease if the Property is a leasehold estate.
9.2 Borrower or General Contractor does not proceed continuously
with the construction of the improvements or the construction of the
improvements is otherwise discontinued for a period of five (5) consecutive
business days or more for any reason. See Special Conditions Exhibit D
attached hereto and incorporated herein by this reference.
9.3 Borrower voluntarily suspends the transaction of business or
there is an attachment, execution or other judicial seizure of any portion of
Borrower's assets and such seizure is not discharged within Thirty (30) days.
9.4 Borrower becomes insolvent or unable to pay its debts as they
mature or makes an assignment for the benefit of creditors.
9.5 Borrower files or there is filed against Borrower a petition to
have Borrower adjudicated a bankrupt or a petition for reorganization or
arrangement under any law relating to bankruptcy unless, in the case of a
petition filed against Borrower, the same is dismissed within Thirty (30) days.
9.6 Borrower applies for or consents to the appointment of a
receiver, trustee or conservator for any portion of Borrower's property or such
appointment is made without Borrower's consent and is not vacated within Thirty
(30) days.
9.7 Any representation by Borrower to Bank concerning Borrower's
financial condition or credit standing or any representation or warranty
contained herein proves to be false or misleading.
9.8 Any persons obtains an order or decree in any court of
competent jurisdiction enjoining the construction of the improvements or
enjoining or prohibiting Borrower or Bank or either of them from performing
this agreement, and such proceedings are not discontinued and such decree is
not vacated within Thirty (30) days after the granting thereof.
9.9 Borrower neglects, fails or refuses to keep in full force and
effect any permit or approval with respect to the construction of the
improvements.
9.10 If any Bonded Notice to Withhold in connection with the Loan is
served on Bank in accordance with the provisions of California Code or similar
provisions of any other state if the Property is not situated in California and
within five (5) days of the receipt of such notice the claim set forth therein
is not discharged or, if the amount claimed is disputed in good faith by
Borrower or General Contractor, an appropriate counter bond or equivalent
acceptance to Bank is filed with Bank.
9.11 The imposition, voluntary or involuntary, of any lien or
encumbrance upon the Property without Bank's written consent or unless an
adequate counter bond is provided and such lien is accordingly released within
ten (10) days of the imposition of such lien.
9.12 The occurrence of any event enumerated in Section 9.3, 9.4,
9.5, 9.6 and 9.7 hereof with respect to any Guarantor or any party signatory to
a Completion Agreement.
9.13 Borrower modifies, amends or terminates or otherwise fails to
consummate the closing of the Permanent Commitment or takes any action that
might or does result in a modification, amendment, termination or expiry of the
permanent Commitment without Bank's written consent.
10. REMEDIES: If any of the events of default set forth in paragraph 9
occur, then Bank, in addition to its other rights hereunder, may at its option,
without prior demand or notice
10.1 Terminate the obligation of Bank to make disbursements
hereunder.
10.2 Declare the Note immediately due and payable.
10.3 Notwithstanding the exercise of either one or both of the
remedies described in paragraphs 10.1 and 10.2 hereof, bank may make any
disbursements after the happening of any one or more of said events of default
without thereby waiving its right to demand payment of the Note and without
liability to make any other or further disbursements.
10.4 Proceed as authorized by law to satisfy the indebtedness of
Borrower to Bank and, in that regard, Bank shall be entitled to all of the
rights, privileges and benefits contained in the Trust Deed and Security
Agreements or other Loan documents.
10.5 Take possession of the Property and perform any and all work
and labor necessary to complete the improvements substantially in accordance
with the Plans in which event expenditures therefor shall be deemed an
additional loan to Borrower, payable on demand, bearing interest at the Default
interest rate and secured by the Trust Deed and Security Agreements.
10.6 Take possession of all funds and deposits of Borrower on hand
or deposit in any account at bank or any branch at Bank and apply said funds in
such order at priority as Bank may elect in connection with the obligations of
Borrower, hereunder, under the Note, the Trust Deed or the Security Agreements.
11. POWER OF ATTORNEY: In the event of default as defined in paragraph 9
hereof, borrower hereby constitutes and appoints Bank its true and lawful
attorney in fact with the power and authority, including full power of
substitution, as follows:
11.1 To take possession of the Property and complete the
improvements.
11.2 To use any of Borrower's Funds and any funds which may remain
undisbursed under the Loan for the purpose of completing the improvements and
for other costs related thereto.
11.3 To make such additions and changes and corrections in the Plans
as may be necessary or desirable as Bank in its sole discretion deems proper to
complete the improvements.
11.4 To employ such contractors, subcontractors and agents,
architects and inspectors are required to complete the improvements.
11.5 To employ watchmen to protect the Property and improvements
from injury.
11.6 To pay, settle or compromise all existing bills and claims
against Borrower's Funds or any funds which may remain undisbursed under the
Loan or as may be necessary or desirable, as Bank in its sole discretion deems
proper, for the completion of the improvements or for protection or clearance of
title to the Property and Personal Property or for the protection of Bank's
interest with respect thereto.
11.7 To prosecute and defend all actions and proceedings in
connection with the construction of the improvements.
11.8 As Bank in its sole discretion deems proper, to execute,
acknowledge, and deliver all instruments and documents in the name of Borrower
which may be necessary or desirable to do and to do any and every act with
respect to the construction of the improvements which Borrower might do on his
own behalf. This Power of Attorney is a power coupled with an interest and
cannot be revoked and any costs or expenses incurred by Bank in connection with
any acts by Bank under or pursuant to this Paragraph 11 shall be at the cost
and expense of Borrower, repayable on demand by Borrower to Bank with interest
thereon at the Default interest rate, with any such advances made or costs or
expenses incurred by Bank to be secured by the Trust Deed and the Security
Agreements.
12. SECURITY INTEREST: Borrower does hereby give and grant to Bank a
security interest in all funds and deposits of Borrower on deposit at Bank or
any branch of Bank, as additional security for the obligations of Borrower
contained in the Note, Trust Deed or the Security Agreements.
13. DISCLAIMER: WHETHER OR NOT BANK ELECTS TO EMPLOY ANY OR ALL OF THE
REMEDIES AVAILABLE TO IT IN THE EVENT OF DEFAULT, BANK SHALL NOT BE LIABLE FOR
THE CONSTRUCTION OF OR FAILURE TO CONSTRUCT OR COMPLETE OR PROTECT THE
IMPROVEMENTS OR FOR PAYMENT OF ANY EXPENSE INCURRED IN CONNECTION WITH THE
EXERCISE OF ANY REMEDY AVAILABLE TO BANK OR FOR THE CONSTRUCTION OR COMPLETION
OF THE IMPROVEMENTS OR FOR THE PERFORMANCE OR NON-PERFORMANCE OF ANY OTHER
OBLIGATION OF BORROWER.
14. SIGNS: Borrower hereby grants Bank the right to erect or cause to be
erected Bank's sign or signs in size and location desired by Bank on the
Property so long as such sign or signs do not interfere with the reasonable
construction of the improvements. Borrower will and will cause General
Contractor and Subcontractors to exercise due care to protect said sign or
signs from damage.
15. GENERAL CONDITIONS:
15.1 NO WAIVER: No delay or omission of Bank in exercising any
right or power arising from any default by Borrower shall be construed as a
waiver of such default or as an acquiescence therein, nor shall any single or
partial exercise thereof preclude any further exercise thereof. Bank may, at
its option, waive any of the conditions herein and any such waiver shall not be
deemed a waiver of Bank's rights hereunder but shall be deemed to have been
made in pursuance of this agreement and not in modification thereof. No waiver
of any event of default shall be construed to be a waiver of or acquiescence in
or consent to any preceding or subsequent event of a default.
15.2 NO THIRD PARTY BENEFITS: This agreement is made for the sole
benefit of Borrower and bank, their successors and assigns and no other person
or persons shall have any rights or remedies under or by reason of this
agreement nor shall Bank owe any duty whatsoever to any claimant for labor
performed or material furnished in connection with the construction of the
improvements, to apply any undisbursed portion of the Loan to the payment of any
such claim or to exercise any right or power of Bank hereunder or arising from
any default by Borrower.
15.3 NOTICE: All written notices or demands of any kind which Bank
may be required or desires to serve upon Borrower under the terms of this
agreement may be served upon Borrower (as an alternative to personal service
upon Borrower) by leaving a copy of such notice or demand addressed to Borrower
at the Property, whereupon service shall be deemed complete, or by mailing a
copy thereof by certified or registered mail, addressed to Borrower at the
Property. In case of service by mail it shall be deemed complete at the
expiration of the second day after the date of mailing. If Borrower consists
of more than one person, service of any notice or demand of any kind by Bank
upon any one of said persons in the manner hereinabove provided shall be
complete service upon all *Business.
15.4 DEATH OF PARTNER: If Borrower is organized as a partnership or
joint venture, upon the death of any of the general partners or joint venturers
comprising Borrower prior to the completion of the improvements or prior to the
disbursement of the balance of Loan Proceeds, Bank may cease disbursements
hereunder unless the Partnership or Joint Venture Agreement provides for and the
partnership or joint venture in fact does continue after such death.
15.5 ENTIRE AGREEMENT: This agreement constitutes the entire
understanding between the parties and may not be modified, amended or
terminated except by a written agreement signed by each of the parties hereto.
15.6 DOCUMENTATION: In addition to the instruments and documents
mentioned or referred to herein, Borrower will, at its own cost and expense,
supply Bank with such other instruments, documents, information and data as
may, in Bank's opinion, be reasonably necessary for the purposes hereof, all of
which shall be in form and consent acceptable to Bank.
15.7 NOT ASSIGNABLE: Neither this agreement nor any right of
Borrower to receive any sums, proceeds or disbursements hereunder, or under the
Note may be assigned, pledged, hypothecated, anticipated or otherwise
encumbered by Borrower without the prior written consent of Bank. Subject to
the foregoing restrictions, this agreement shall inure to the benefit of Bank,
its successors and assigns and bind Borrower, its heirs, executors,
administrators, successors and assigns.
15.8 TIME IS OF THE ESSENCE: Time is hereby declared to be of the
essence of this agreement and of every part hereof.
15.9 SUPPLEMENT TO SECURITY AGREEMENTS: The provisions of this
agreement are not intended to supersede the provisions of the Trust Deed or the
Security Agreements but shall be construed as supplemental thereto.
15.10 JOINT AND SEVERAL OBLIGATIONS: If Borrower consists of more
than one person, the obligations of Borrower shall be the joint and several
obligations of
- 4 -
40
all such persons, and any married person who execute this agreement agrees that
recourse may be bad against his or her separate property for satisfaction of
his or her obligations hereunder. When the context and construction so require,
all words used in the singular herein shall be deemed to have been used in the
plural and the masculine shall include the feminine and neuter and vice versa.
15.11 CALIFORNIA LAW: This agreement shall be construed in accordance
with the laws of the State of California.
15.12 AGENCY: Borrower hereby appoints and authorizes Bank, as its
agent, to record any notices of completion, cessation of labor and other notices
that Bank deems necessary to record to protect any interest of Bank under the
provisions of this agreement, the Note, the Trust Deed or any of the Security
Agreements. This agency is a power coupled with an interest and is not
revocable.
15.13 GOVERNMENTAL REGULATIONS: If payment of the indebtedness secured
by the Trust Deed is to be insured or guaranteed by any governmental agency,
Borrower shall comply with all rules, regulations, requirements and statutes
relating thereto or provided in any commitment issued by any such agency to
insure or guarantee payment of such indebtedness.
15.14 [copy illegible] demand, with interest thereon from date of
expenditure at the Default Interest rate, reasonable attorneys' fees and all
costs and other expenses paid or incurred by Bank in enforcing or exercising
its rights or remedies created by, connected with or provided in this
agreement, and payment thereof shall be secured by the Trust Deed and each of
the Security Agreements.
15.15 SURVIVAL: The Representations, Warrants and covenants herein
shall survive the disbursement of the Loan and shall remain in force and effect
until the Loan is paid in full.
15.15.1*
16. SEVERABILITY: Invalidation of any one or more of the provisions of this
agreement, the Trust Deed or Security Agreements by judgment or court order
shall in no way affect any of the other provisions thereof which shall remain
in force and effect.
17. PARTICULAR CONDITIONS: The particular conditions, if any, are set forth
in Exhibit "C" attached hereto and made a part hereof.
*5.2.11, 7.20, 8.26 and 15.15.1: See Hazardous Materials Rider attached hereto
and incorporated herein by this reference.
IN WITNESS WHEREOF, the parties have executed this agreement the day
and year first above written.
UNION BANK, a California corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Xxxx X. Xxxxxxx, Xx. Vice President
By: /s/ J. Xxxxxx Xxxxxx
-----------------------------------
J. Xxxxxx Xxxxxx, Vice President
BORROWER
Westerra Pacific Associates, a California
General Partnership
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxx, Xx.,
General Partner
By: /s/ X. Xxxxxxx Xxxxxxxx
-----------------------------------
X. Xxxxxxx Xxxxxxxx,
General Partner
By: Westerra Executives, Ltd., a California
Limited Partnership, General Partner
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxx, Xx.,
General Partner
GENERAL CONTRACTOR
The undersigned General Contractor hereby represents and warrants it
has initiated the Plans, makes the covenants set forth in paragraphs 8.6 and
8.7 hereof and agrees that the Disbursement Schedule shall control
notwithstanding the provisions of the General Contract.
GENERAL CONTRACTOR
By
-----------------------------------
By
-----------------------------------
-5-
41
THIS EXHIBIT A IS ATTACHED TO AND A PART OF THAT CERTAIN BUILDING LOAN
AGREEMENT DATED September 1, 1989 BY AND BETWEEN THE UNDERSIGNED.
THE LOAN PROCEEDS IN THE AMOUNT OF $17,500,000.00 PLUS BORROWER'S FUNDS
IN THE AMOUNT OF $ -0- AGGREGATING $17,500,000.00 SHALL BE DISBURSED AS
FOLLOWS:
I. INITIAL DISBURSEMENT: Bank is hereby authorized and directed to make
Initial Disbursements for the purposes, in the amounts, and to the
persons indicated:
1. As a non-refundable Loan Fee to Union Bank, the sum of $180,000.00.
2. To n/a
for payment of Title Policy Premiums and recording fees, the
approximate sum of $ n/a.
3. For payment of taxes, the sum of $ n/a.
4. Upon demand of Founders Title Company, pay the principal sum of
$4,278,743.00 to Founders Title Company for the credit of Borrower
for use in their escrow number 603124.
5. To Union Bank for appraisal fees and other costs of processing the
Loan the approximate sum of $______________.
6. Other:
Pay Secretary of State UCC-3 Search $12.00
Pay Secretary of State UCC-1 Filing $5.00
Pay Union Bank - Legal Fees $918.70
II. SUBSEQUENT DISBURSEMENTS: The remainder of the Loan Proceeds and
Borrower's Funds in the sum aggregate of $13,040,321.30 plus funds not
disbursed as provided for in Section I hereof or less any additional
funds disbursed as provided for in Section I hereof, shall be disbursed
in conformity with the following paragraphs which are indicated by X:
/X/ A. On or about the first day of each calendar month following
commencement of construction of the Improvements, Contractor shall
submit to Borrower or Borrower's Architect, a Certified Invoice showing
the estimated cost of labor performed on and materials incorporated into
the improvements, a pro-rata portion of the General Contractor's profit
and that pro-rata portion of overhead of General Contractor attributable
to the construction of the Improvements. The original of such Certified
Invoice, certified true and correct by the General Contractor and
approved by Borrower or Borrower's Architect, shall be submitted to Bank
for payment. Upon verification of the accuracy of the Certified Invoice
by Bank inspection of the Property and Improvements, Bank shall disburse
to General Contractor, Borrower or Subcontractors, laborers and
materialmen (at Bank's option as to whom and the amounts payments are
made) 100% of the amount of the respective Approved Certified Invoice
but in no event shall the aggregate of such payments exceed the sum of
$5,190,480.00 except as provided for by Borrower and accompanied by
funds for the payment thereof. The Final Disbursement in the sum of
$576,720.00 shall be made upon compliance with the provisions of
paragraph 6.3 of the Building Loan Agreement.
/ / B. Upon receipt by Bank of Bank's Voucher signed by Borrower or
Borrower's Architect, properly endorsed by the Payee, accompanied by
unconditional lien waivers for the work or materials represented by the
respective voucher duly signed by the mechanic or materialman supplying
said work or material, and upon Bank's verification of the accuracy of
the amount and labor or materials represented by the voucher so
submitted by Bank's Inspection Department and upon confirmation by
Bank's Loan Officer responsible for the Loan that after such
disbursements there shall remain adequate funds in the Undisbursed Real
Estate Loan Account and the Borrower's Funds. Building Loan Account to
complete construction of the Improvements. Bank shall pay the voucher
amount to the party submitting the voucher but in no event shall the
aggregate of such payments exceed the sum of $__________ except as
provided for by Borrower and accompanied by funds for the payment
thereof.
If conditional lien waivers are submitted to Bank, at Bank's option,
Bank shall either return such conditional lien waiver to the person so
submitting the waiver, in which case no payment shall be made by Bank on
the voucher accompanying such conditional lien waiver, or Bank shall
make payment by joint check payable to the person submitting the voucher
and the person signing the conditional lien waiver which check shall
contain an unconditional lien waiver on the reverse thereof. The Final
Disbursement in the sum of $__________ shall be made upon compliance
with the provisions of paragraph 6.3 of the Building Loan Agreement.
/ / C. The sum of $__________ shall be paid to General Contractor,
Borrower or subcontractors, laborers and materialmen (at Bank's option
as to whom and the amounts payments are to be made) in progress
payments. Each progress payment shall be paid upon the occurrence of the
conditions and in amounts equal to the percentage of such sum set forth
on the Bank approved rider attached hereto and a part hereof.
/X/ D. The sum of $1,806,260.00 plus funds not disbursed as provided for
in Section I hereof or less any additional funds disbursed as provided
for in Section I, hereof, shall be disbursed from time to time on the
interest payment date specified in the Note by the withdrawing by Bank
of sufficient amounts to pay interest due on the Note. Each such
interest payment shall then be deemed paid in full. When said sum has
been completely disbursed. Borrower shall make interest payments
directly to Bank in accordance with the terms of the Note.
42
/X/ E. The sum of $3,079,581.30 shall be disbursed in amounts and for
the purposes specified below.
On or about the first day of each calendar month, following commencement of the
work, Borrower, Contractor or his authorized agent shall submit request and
itemized invoice on Bank form or form acceptable to Bank, covering expenses
incurred. Bank, after inspection or verification satisfactory to it that said
funds have been expended, shall disburse 100% of approved invoice for the
following items:
Option Fee - Parcel 6-B $225,000.00
Architectural and Engineering 330,000.00
Fees, Permits, Assessments 430,900.00
Property Taxes 110,000.00
Insurance 26,000.00
Supervision, O.H. Administration, Etc. 437,500.00
Legal, Accounting, (Admin. Costs) 149,081.30
Profit 437,500.00
Permanent Financing Cost 110,000.00
Mortgage Placement Fee 175,000.00
Miscellaneous 134,500.00
Commercial Loans Interest 50,500.00
Land Draw 463,600.00
F. The sum of $2,387,280.00 shall be disbursed to Borrower for Tenant
Improvements upon written request of Borrower at the rate of $23.00 per square
foot of leased area. Upon Bank's receipt of executed leases in form and
content acceptable to Bank and verification of the improvements of Bank
inspection.
THIS DISBURSEMENT SCHEDULE IS EXECUTED BY BORROWER AND BANK THIS 1ST
DAY OF SEPTEMBER, 1989.
BORROWER UNION BANK
Westerra Pacific Associates, a California By: /s/ XXXX X. XXXXXXX
General Partnership -------------------------------
Xxxx X. Xxxxxxx, Xx.
By: /s/ XXXXXX X. XXXXXXX, XX. Vice President
------------------------------------
Xxxxxx X. Xxxxxxx, Xx.,
General Partner By: /s/ J. XXXXXX XXXXXX
-------------------------------
By: /s/ X. XXXXXXX XXXXXXXX J. Xxxxxx Xxxxxx,
------------------------------------ Vice President
X. Xxxxxxx Xxxxxxxx,
General Partner
By: Western Executives, Ltd.,
------------------------------------
a California Limited Partnership,
General Partner
By:
------------------------------------
Xxxxxx X. Xxxxxxx, Xx.,
General Partner
FOR ACCOUNTING PURPOSES ONLY:
/X/ MAKE DISBURSEMENTS UNDER II HEREOF TO WESTERN PACIFIC ASSOCIATES
BY: /X/ CREDITING COMMERCIAL ACCOUNT #400011046 AT OFFICE NO. 400
/ / CASHIER'S CHECK
43
(If there are no major leases, please write NONE.)
Lease: dated December 7, 1988
executed by: JAYCOR, a California Corporation & Westerra
Pacific Associates, a California General
Partnership
covering: Xxx 0 xx Xxxxxxxx Xxxxxxxxxx Xxxx Xxx Xxxxx,
XX and a 100,000 square foot office building
term: 10 years with two options to extend for periods
of 5 years each
SPECIAL CONDITIONS
(EXHIBIT C)
(If there are no major leases, please write NONE.)
Recent California legislation now requires any title company handling funds in
an escrow capacity to have deposited into its escrow depository account before
recording a transaction immediately available funds representing disbursements
to be made by it.
Borrower's title company shall specify the date it needs such proceeds
(including loan proceeds) for use in said escrow.
Accordingly, on all funds disbursed pursuant to Section I.4 above, you may
deliver such disbursement to Founders Title Company's Escrow No. 603124 on the
date specified by said title company which date may be prior to the recording of
Borrower's Deed of Trust. Interest on amounts outstanding under the Note shall
accrue from the date of disbursement which may be different than the date of
recording of the above described Deed of Trust.
Funds are to be wired to:
Xxxxx Fargo Bank
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
ABA #121500248
Account of Founders Title Company Account No. 4652048729
Ref: Escrow No. 603124/Westerra Pacific Assoc.
Regarding the Disbursing Schedule II.A the sum of $5,767,200.00 shall be
disbursed only at such time as Bank is in receipt of the following items:
1. Signed Contract with cost breakdown attached.
2. Assignment of Construction Contract.
3. Copy of Building Permits.
4. Course of Construction Insurance furnished by Borrower.
5. General Liability and Workmen's Compensation Insurance furnished on behalf
of General Contractor.
6. Completion Agreement executed by Contractor.
7. Resolution Authorizing Completion Agreement (if applicable).
-8-
44
SPECIAL CONDITIONS
Exhibit D
Force Majeure. The term "Force Majeure" shall mean a period, not in
excess of ninety (90) days in the aggregate, except as otherwise may be agreed
to by Bank, equal to the period of time that Borrower is unable to proceed with
construction of the Improvements as a result of Unavoidable Delays.
"Unavoidable Delays" shall mean delays due to weather, strikes, availability of
materials, governmental delays, acts of God or other matters which cannot be
anticipated and which are outside Borrower's control. Such other matters shall
not include delays caused by a failure to comply with the terms of this
Agreement or by any lack or shortage of funds on Borrower's part. To effect an
extension under this paragraph 9.2 Borrower shall deliver written notice to
Bank setting forth in the date of commencement of any event for which an
extension is requested (which notice must be delivered within five (5) business
days after such commencement date and which notice shall also specify the
probable duration of such event) and Borrower shall also deliver to Bank
written notice setting forth the date such event ended (which notice must be
delivered within five (5) business days after such ending date.)
45
HAZARDOUS MATERIALS
RIDER TO BUILDING LOAN AGREEMENT
1.40 Hazardous Materials: substances defined as "hazardous substances,"
"hazardous materials," or "toxic substances" in the Comprehensive Environmental
Responses, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sec.
9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. Section
1801, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Section
6901, et seq.; and those substances defined as "hazardous wastes" in Section
25117 of the California Health & Safety Code or as "hazardous substances" in
Section 25316 of the California Health & Safety Code; and in the regulations
adopted, published and/or promulgated pursuant to said laws.
1.41 Preliminary Site Assessment: a report (and all amendments, modifications
updates and reviews thereof) on the presence of Hazardous Materials on, in,
under or about the property issued by or reviewed and approved by an entity
knowledgeable in environmental matters acceptable to Bank, in form and content
acceptable to Bank and delivered or caused to be delivered to Bank by Borrower
at Borrower's cost and expense.
5.2.11 Bank shall have no knowledge of the presence of any Hazardous Materials
creating an adverse economic impact upon the Property.
7.20 Hazardous Materials: Except as may be set forth in the Preliminary Site
Assessment, Borrower hereby warrants and represents that the Property is not now
and shall not at any time in the future be in violation of any federal, state or
local law, ordinance or regulation relating to environmental conditions on,
under or about the Property including, but not limited to, soil and groundwater
conditions. Until the loan is repaid in full, neither Borrower, any Successor in
interest to Borrower, nor any Tenant of Borrower or such Successor in interest
shall use, generate, manufacture, refine, produce, process, store or dispose of
on, under or about the Property or transport to or from the Property any
Hazardous Materials, as defined below, in contravention of any applicable law,
rule, regulation or order (collectively, "Hazardous Waste Laws"), nor does
Borrower intend to use the Property in the future for the purpose of
transferring, processing or transporting of Hazardous Materials, as defined
below, in contravention of any Hazardous Waste Law.
8.26 Removal of Hazardous materials: If at any time during the term of this
Loan, Hazardous Materials are discovered, used, or placed on the Property in
violation of any Hazardous Waste Law, Borrower, at Borrower's sole cost and
expense, shall remove such Hazardous Materials from the Property or the
groundwater underlying the Property in accordance with requirements of the
appropriate governmental entity. In addition to all other rights and remedies of
bank hereunder, if such Hazardous Materials are not removed from the Property or
the groundwater underlying the Property by borrower within ninety (90) days
after Borrower discovers such Hazardous Materials, bank, at its sole discretion,
may pay to have same removed and Borrower shall reimburse Bank within five (5)
days of bank's demand for payment. Borrower shall indemnify and hold Bank
harmless from and against all loss, damage, liability (including without
limitation, the cost of any required cleanup of the Hazardous Materials and all
attorneys' fees and expenses incurred by bank in connection therewith ) which
Bank may sustain as a result of the presence or cleanup of Hazardous Materials
on the Property in violation of any Hazardous Waste Law.
15.15.1 All representations, warranties and indemnities with respect to
Hazardous Materials shall survive the repayment of the Loan.
Date: September 1, 1989
BORROWER UNION BANK
a California corporation
See reverse for signatures By: /s/ XXXX X. XXXXXXX
-------------------------- -----------------------------------
Xxxx X. Xxxxxxx, Xx. Vice President
By: /s/ J. XXXXXX XXXXXX
-------------------------- --------------------------------
J. Xxxxxx Xxxxxx, Vice President
(6/3/88)
Form C
46
Westerra Pacific Associates, a California
General Partnership
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxx, Xx., General Partner
By: /s/ X. Xxxxxxx Xxxxxxxx
---------------------------------------
X. Xxxxxxx Xxxxxxxx, General Partner
By: Westerra Executives, Ltd., a California
Limited Partnership, General Partner
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxx, Xx., General Partner
Jaycor, a California corporation hereby assumes the obligations
of borrower hereunder and agrees to be bound by the terms and
conditions of this agreement.
Jaycor, a California corporation
BY:_____________________________
47
DO NOT DESTROY THIS NOTE: When paid, this note, with Deed of Trust securing
same, must be surrendered to Trustee for cancellation and retention before
reconveyance will be made.
Loan Number 4960035-647-000647
[LOGO]
Union Bank
NOTE SECURED BY DEED OF TRUST
(FLOATING RATE NOTE)
$17,500,000.00 San Diego , California September 1, 1989
-------------- ----------------------- --------------------
(City) (Date)
On March 11, 1991 for value received, the undersigned, jointly and
severally, promise(s) to pay to the order of UNION BANK at its office at 000
"X" Xxxxxx in this city, or at such other place as the holder of this note may
from time to time designate in writing, the principal sum of Seventeen Million
Five Hundred Thousand and no/100ths Dollars together with interest from date
hereof computed on principal balances hereof from time to time outstanding,
adjusted daily to the rate which is Three-Quarters percent (.75%) per year in
excess of the Union Bank Reference Rate which is that rate announced by the
Bank at its Corporate Headquarters as the Union Bank Reference Rate, and which
shall vary concurrently with any change in such rate.
Interest shall be payable on the first day of each calendar month
following the date hereof and shall be computed daily by multiplying the then
outstanding principal balance by 1/360th of the above annual interest rate.
Should interest not be so paid, it shall become a part of the principal and
thereafter bear interest as herein provided.
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
and extensions thereof) securing or pertaining to this note at the option of
the holder hereof and without notice or demand, the entire balance of principal
and accrued interest then remaining unpaid shall become immediately due and
payable and thereafter bear interest, until paid in full, at the increased rate
of 5% per annum over and above the rate contracted for herein as it may vary
from time to time. No delay or omission on the part of the holder hereof in
exercising any right hereunder, or under any such Deed of Trust, security
agreement or other agreement shall operate as a waiver of such right or of any
other right under this note or under any such Deed of Trust, security agreement
or other agreement.
If this note is not paid when due, whether at its specified or
accelerated date, the undersigned promise(s) to pay all costs of collection,
including, but not limited to, reasonable attorneys' fees incurred by the
holder hereof on account of such collection, whether or not suit is filed
hereon.
Principal and interest shall be payable in lawful money of the United
States. The receipt of any check or other item of payment by Bank, at its
option, shall not be considered a payment on account until such check or other
item of payment is honored when presented for payment at the drawee bank. Bank
may delay the credit of such payment based upon its schedule of funds
availability and interest shall accrue until the funds are deemed collected.
The undersigned waive(s) the defense of the statute of limitations in any action
on this note.
This note is secured by a Deed of Trust to UNION BANK, a California
corporation, as Trustee, and shall be governed and construed in accordance with
California law.
The Deed of Trust securing the obligation evidenced hereby contains the
following provision: "that should trust or sell, convey, transfer, dispose of or
further encumber said property or any part thereof or any interest therein or
enter into a lease covering all or any portion thereof or an undivided interest
therein, either voluntarily, involuntarily or otherwise, or enter into an
agreement so to do, without the prior written consent of Beneficiary being
first had and obtained, then Beneficiary may, at its option, declare all sums
secured hereby immediately due and payable. Consent to one such transaction
shall not be deemed to be a waiver of the right to require such consent to
future or successive transactions."
WESTERRA PACIFIC ASSOCIATES, a California General Partnership
By: /s/ XXXXXX X. XXXXXXX, XX.
-----------------------------------------
Xxxxxx X. Xxxxxxx, Xx., General Partner
By: /s/ X. XXXXXXX XXXXXXXX
-----------------------------------------
X. Xxxxxxx Xxxxxxxx, General Partner
By: Westerra Executives, Ltd., a California
Limited Partnership, General Partner
By: /s/ XXXXXX X. XXXXXXX, XX.
-----------------------------------------
Xxxxxx X. Xxxxxxx, Xx., General Partner
Jaycor, a California corporation hereby assumes the obligations of Borrower
hereunder and agrees to be bound by the terms and conditions of this agreement.
Jaycor, a California corporation
BY:_____________________________________
48
RECORDING REQUESTED BY:
FOUNDERS TITLE CO.
------------------------
RECORDED IN
OFFICIAL RECORDS
OF SAN DIEGO COUNTY, CA
89 SEP 11 PM 12:20
XXXX X. XXXX
COUNTY RECORDER
-----------------------
--------------------
UNION BANK
000 "X" Xxxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxx
--------------------
CONSTRUCTION DEED OF TRUST AND ASSIGNMENT OF RENTS
This deed of Trust and Assignment of Rents, made as of this 1st day of
September, 1989, between WESTERRA PACIFIC ASSOCIATES, a California General
Partnership herein called TRUSTOR whose address is 0000 Xxxxxxxxx Xxxxx, Xxxxx
000, Xxx Xxxxx, XX 00000 and UNION BANK, a California Corporation, whose address
is 000 "X" Xxxxxx, Xxx Xxxxx, XX 00000, as Trustee and also as Beneficiary.
WITNESSETH: That Trustor IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS to Trustee,
its successors and assigns, in Trust, with POWER OF SALE TOGETHER WITH RIGHT OF
ENTRY AND POSSESSION, all that property, including all of the easements,
rights, rights of way, privileges, franchises and appurtenances thereunto
belonging or in any way appertaining or as a means of access thereto, now or
hereafter acquired, in the City of San Diego, County of San Diego, State of
California, described as:
Xxx 0 xx XXXXXXXX XXXXXXXXXX XXXX XXXX XX. 0, in the City of San Diego, County
of San Diego, State of California, according to Map thereof No. 10830, filed in
the Office of the County Recorder of San Diego County, January 30, 1984.
EXCEPTING THEREFROM all oil, gas, hydrocarbon substance and minerals of every
kind and character lying more than 500 feet below the surface, together with
the right to drill into, through, and to use and occupy all parts of the site
lying more than 500 feet below the surface thereof for any and all purposes
incidental to the exploration for any production of oil, gas, hydrocarbon,
substances or mineral from the site, but without, however, any right to use or
disturb either the surface of the site or any portion thereof within 500 feet
of the surface for any purpose or purposes whatsoever.
Together with the rents, issues, profits, royalties, revenue, income and other
benefits thereof or arising from the use or enjoyment of all or any portion of
the property including all rights, title and interest of the Trustor in and to
all leases covering portions of the property then or thereafter entered into
and all right, title and interest of the Trustor thereunder including, without
limitation, cash or security deposited thereunder to secure the performance by
the lessees of their obligations thereunder; subject however, to the right,
power and authority hereinafter given to and conferred upon Trustor to collect
and apply such rents, issues and profits prior to any default hereunder; and
including all buildings and improvements now or hereafter thereon, and all
appurtenances, easements, water and water rights, pumps and pumping plants and
all shares of stock evidencing the same; all machinery, equipment, appliances
and fixtures for generating or distributing air, water, heat, electricity,
light, fuel or refrigeration, or for ventilating or sanitary purposes, or for
the exclusion of vermin or insects, or for the removal of dust, refuse or
garbage; all all-beds, wall-safes, built in furniture and installations,
shelving, lockers, partitions, door-stops, vaults, elevators, dumb-waiters,
awnings, window shades, venetian blinds, light fixtures, fire hoses and
brackets and boxes for same, fire sprinklers, alarm systems, drapery rods and
brackets, screens, linoleum, carpets, plumbing, laundry tubs and trays, ice
boxes, refrigerators, heat units, stoves, water heaters, incinerators,
communication systems, all installations for which any such building is
specifically designed and ___________________________________________
_____________________________________________________________________
_____________________________________________________________________
All of said items, whether now or hereinafter installed, being hereby declared
to be, for all purposes of this Deed of Trust, a part of the realty; and all
the estate, interest, or other claim or demand including insurance, as well in
law as in equity, which Trustor now has or may hereafter acquire, in and to the
aforesaid property; the specific enumerations herein not excluding the general.
49
FOR THE PURPOSE OF SECURING, in such order of priority as beneficiary may
elect, (1) payment of an indebtedness in the sum of $17,500,000.00 evidenced
by that certain promissory note of even date herewith executed by Trustor to
the order of Beneficiary and any and all modifications, extensions or renewals
thereof, whether hereafter evidenced by said note or otherwise; (2) payment of
interest on said indebtedness according to the terms of said promissory note;
(3) payment of all other sums, with interest as herein provided, becoming due
or payable under the provisions hereof to trustee or Beneficiary; (4) due,
prompt and complete observance, performance and relative to any indebtedness
evidenced by said note; and (5) payment of such additional sums with interest
thereon as may be hereafter borrowed from Beneficiary, its successors or
assigns by Trustor or the then record owner or owners of said property when
evidenced by another promissory note or notes, which are by the terms thereof
secured by this Deed of Trust.
TO PROTECT AND MAINTAIN THE SECURITY OF THIS DEED OF TRUST, TRUSTOR AGREES:
(1) To pay, perform, observe and discharge each and every condition,
obligation, covenant and agreement for which this deed of trust has been given
as security as provided above.
(2) To keep such property in good condition and repair; not to remove
or demolish any improvement thereon; to complete or restore promptly and in
good and workmanlike manner any improvement which may be constructed, damaged
or destroyed thereon and to pay when due all claims for labor performed and
materials furnished therefor; to comply with all laws affecting said property
or requiring any alterations or improvements to be made thereon; not to commit
or permit waste thereof; to perform, in the event all or any portion of the
above described property constitutes a leasehold estate belonging to Trustor,
each and every obligation of Trustor under the terms of the lase agreement
relating to the demise of such property; not to commit, suffer or permit any
act upon said property in violation of law; to cultivate, irrigate, fertilize,
fumigate, prune and do all other acts which from the character or use of said
property may be reasonably necessary, the specific enumerations herein not
excluding the general.
(3) To provide, maintain and deliver to Beneficiary fire with extended
coverage endorsement, public liability, property damage and other insurance
policies in companies and form, content and term satisfactory to and with loss
payable to Beneficiary, such delivery to constitute an assignment to
beneficiary of all return premiums. The amount collected under any fire or
other insurance policy may be applied by Beneficiary upon any indebtedness
secured hereby and in such order as Beneficiary may determine, or at option of
Beneficiary the entire amount so collected 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 pursuant to such notice.
(4) 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 to pay all costs and expenses, including cost of evidence of title and
attorney's fees in a reasonable sum, in any such action or proceeding in which
Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to
foreclose this Deed of Trust.
(5) To pay and discharge, at least ten days prior to delinquency, all
taxes of every kind and nature, including real and personal property taxes and
income, franchise, withholding, profits and gross receipts taxes, all general
and special assessments, including assessments on appurtenant water stock,
levies, permits, inspection and license fees, all water and sewer rents and
charges, and all other public charges whether of a like or different nature,
imposed upon or assessed against trustor or said property or any part thereof
or upon the revenues, rents, issues, income or profits thereof; when due, all
incumbrances, charges and liens, with interest, on said property or any part
thereof, which appear to be prior or superior hereto or subject or subordinate
hereto; all costs, fees and expenses of this Trust; or, if and as required by
Beneficiary, to pay to beneficiary in equal installments on the day on which
monthly payments of principal and interest are due under said note, sufficient
funds (as estimated by Beneficiary from time to time) to pay when due the
next maturing taxes, assessments and hazard insurance premiums. When so
provided with sufficient funds, Beneficiary shall pay such taxes, assessments
and hazard insurance premiums before delinquency, and excess over the amount
required for such purposes shall be held for future use, applied to any
indebtedness hereby secured or refunded to Trustor at beneficiary's option.
To promptly and completely observe, perform, and discharge each and
every condition, obligation, covenant and agreement affecting said property,
whether the same is prior and superior or subject and subordinate hereto
including, if the security hereunder is or will be a condominium, community
apartment or part of a planned development, each and every provision to be
performed by Trustor under any Declaration of Covenants, Conditions and
Restrictions pertaining to the condominium, community apartment or planned
development project and, upon written request of Beneficiary, to pay
maintenance charges, if the same have not been paid or legal steps have not
been initiated to enforce such payment within ninety (90) days after such
written request is made.
Should Trustor fail to make any payment or to do any act as herein
provided, then Beneficiary or Trustee, but without obligation so to do and
without notice to or demand upon Trustor and without releasing Trustor from any
obligation hereof, may: make or do the same in such manner and to such extent
as either may deem necessary to protect the security hereof, Beneficiary or
trustee being authorized to enter upon said property for such purposes; appear
in and defend any action or proceeding purporting to affect the security hereof
or the rights or powers of beneficiary or trustee; pay, purchase, contest or
compromise any incumbrance, charge or lien which in the judgment of either
appears to be prior or superior hereto; and, in exercising any such powers,
pay necessary expenses, employ counsel and pay his reasonable fees.
(6) To pay immediately and without demand all sums so expended by
Beneficiary or Trustee, with interest from date of expenditure to 5.75 per cent
per annum, in excess of Union Bank's reference rate of interest adjusted on a
daily basis.
(7) That any award of damages in connection with any condemnation for
public use of or injury to said property or any part thereof is hereby assigned
and shall be paid to Beneficiary who may apply or release such moneys received
by him in the same manner and with the same effect as above provided for
disposition of proceeds of fire or other insurance, notwithstanding the fact
that the security given hereby may not be impaired by a partial condemnation,
Beneficiary, in its sole and absolute discretion, shall have the right to apply
all compensation, award or other payments or relief therefor made on account
thereof to either the payment of accrued but unpaid interest and second to the
prepayment of principal under said promissory note or reimbursement of Trustor
for expenses incurred by it in the restoration of said property, and in respect
thereto, Trustor hereby waives the benefit of any statute or rule of law which
may be contrary thereto.
(8) That by accepting the payment, performance or observance of any
condition, obligation, covenant or agreement contained herein after the date to
be paid, performed or observed as provided hereunder, Beneficiary does not
waive its right either to require prompt payment, performance or observance
when due of all other conditions, obligations, covenants or agreements
contained herein or to declare a default for failure so to do.
(9) That at any time or from time to time, without liability therefor
and without notice, upon written request of Beneficiary and presentation of this
Deed of Trust and said note for endorsement, and without affecting the personal
liability of any person for payment of the indebtedness secured hereby, Trustee
may: reconvey any part of said property; consent to the making of any map or
plat thereof; join in granting any easement thereon; join in the execution of
or subordination of the lien or charge hereof to any covenants, conditions or
restrictions affecting said property; or join in any extension agreement or any
agreement subordinating the lien or charge hereof.
(10) That upon written request of Beneficiary stating that all sums
secured hereby have been paid, and upon surrender of this Deed of Trust and
said note to Trustee for cancellation and retention and upon payment by Trustor
of its fees, Trustee shall reconvey, without warranty, the property then held
hereunder. The recitals in such reconveyance of any matters or facts shall be
conclusive proof of the truthfulness thereof. The grantee in such reconveyance
may be described as "the person or persons legally entitled thereto."
(11) That Trustor absolutely and unconditionally hereby assigns,
transfers, conveys and sets over to Beneficiary all the rents, royalties;
issues, profits, revenue, income and other benefits of said property arising
from the use or enjoyment of all or any portion thereof or from any lease or
agreement pertaining thereto (collectively the "Rents"); provided, however,
prior to any default by Trustor in the payment, observance, performance and
discharge of any condition, obligation, covenant or agreement of Trustor
contained herein, Trustor shall have the right as the agent and fiduciary
representative of Beneficiary for collection and distribution purposes only, to
collect and receive the Rents as they become due and payable to be applied by
Trustor to the payment of the principal and interest and all other sums due or
payable on said promissory note and to the payment of all other sums payable
under this Deed of Trust and, thereafter, so long as no default as aforesaid
has occurred, the balance shall be distributed to the account of Trustor. Upon
any such default, Beneficiary may at any time without notice, either in person,
by agent or by a receiver to be appointed by a court, and without regard to the
adequacy of any security for the indebtedness hereby secured, enter upon and
take possession of said real property or any part thereof, in its own name or
in the name of Trustor, xxx for or otherwise collect the Rents, including those
past due and unpaid and apply the same, less costs and expenses of operation
and collection, including reasonable attorneys' fees and expenses, to the
payment of the principal and interest and all other sums due or payable on
said promissory note and to the payment to all other sums payable under this
Deed of Trust and in such order as Beneficiary may determine. The entering
upon and taking possession of said property, the collection of the Rents and
the application thereof as aforesaid, shall not cure or waive any default or
notice of default hereunder or invalidate any act done pursuant to such notice.
50
[UNABLE TO READ FIRST FOUR PARAGRAPHS ON PAGE]
After deducting all costs, fees and expenses of Trustee and of this
Trust, including cost of evidence of title in connection with sale, Trustee
shall apply the proceeds of sale to payment of: all sums expended under the
terms hereof, not then repaid, with accrued interest at the rate specified in
paragraph (6) hereof, all other sums then secured hereby; and the remainder, if
any, to the person or persons legally entitled thereto.
If this Deed of Trust or any note secured hereby provides for any
charge for prepayment of any indebtedness secured hereby, Trustor agrees to pay
said charge if any of said indebtedness shall be paid prior to the date thereof
stated in said note or this Deed of Trust, even if and notwithstanding Trustor
shall have defaulted in payment thereof, or in performance of any agreement
hereunder, and Beneficiary, by reason thereof, shall have declared all sums
secured hereby immediately due and payable.
(13) That if the Trustor, or any subsequent owner of the property
covered hereby, shall occupy said property, or any part thereof, after any
default in payment of any amount secured by this Deed of Trust, the Trustor, or
such owner, shall pay to the Beneficiary in advance on the first day of each
month a reasonable rental for the premises so occupied, and upon failure to pay
such reasonable rental, the Trustor, or such owner, may be removed from said
premises by summary dispossess proceedings or by any other appropriate action
or proceeding.
(14) Beneficiary, acting alone, may from time to time, by instrument
in writing, substitute a successor or successors to any Trustee named herein or
acting hereunder, which instrument, executed and acknowledged by each and
recorded in the office of the recorder of the county or counties where said
property is situated, shall be conclusive proof of proper substitution of such
successor Trustee or Trustees, who shall, without conveyance from the Trustee
predecessor, succeed to all its title, estate, rights, powers and duties. Said
instrument must contain the name of the original Trustor, Trustee and
Beneficiary hereunder, the book and page or document number where this Deed of
Trust is recorded, and the name and address of the new Trustee. If notice of
default shall have been recorded, this power of substitution cannot be exercised
until after the costs, fees and expenses of the then acting Trustee
shall have been paid to such Trustee, who shall endorse receipt thereof upon
such instrument of substitution.
(15) That any Trustor who is a married person hereby expressly agrees
that recourse may be had against his or her separate property, but without
hereby creating any lien or charge thereon, for any deficiency after sale of
the property hereunder.
(16) That Trustor shall, upon request made by Beneficiary, furnish
Beneficiary with annual statements covering the operations of said property.
(17) The Beneficiary may collect a "late charge" not to exceed an
amount equal to four per centum (4%) of any installment which is not paid within
fifteen (15) days from the date thereof to cover the extra expense involved in
handling delinquent payments.
(18) That the pleading of any statute of limitations as a defense to
any and all obligations secured by this Deed of Trust is hereby waived to the
full extent permissible by law.
(19) That this Deed of Trust applies to, inures to the benefit of, and
binds all parties hereto, their heirs, legatees, devisees, administrators,
executors, successors and assigns. The term Beneficiary shall mean the owner
and holder, including pledgees, of the note secured hereby, whether or not
named as Beneficiary herein. In this Deed of Trust, whenever the context so
requires, the masculine gender includes the feminine and neuter, and the
singular number includes the plural.
(20) That Trustee accepts this Trust when this Deed of Trust, 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 shall be a party unless brought by Trustee.
(21) To pay Beneficiary for each and every beneficiary statement
furnished at Trustor's request the maximum fee allowed by law and if there be
no maximum, then in accordance with Beneficiary's schedule therefor. Such fee
shall be computed as of the time said statement is furnished.
(22) That should Trustor sell, convey, transfer, dispose of or further
encumber said property or any part thereof or any interest therein or enter into
a lease covering all or any portion thereof or an undivided interest therein,
either voluntarily, involuntarily or otherwise, or enter into an agreement so to
do, without the prior written consent of Beneficiary being first had and
obtained such consent not to be unreasonably withheld, then Beneficiary may, at
its option, declare all sums secured hereby immediately due and payable.
Consent to one such transaction shall not be deemed to be a waiver of the right
or require such consent to future or successive transactions.
(23) If Trustor is a corporation, trust, limited or general
partnership or joint venture, should there occur a sale, conveyance, transfer,
disposition or encumbrance either voluntary or involuntary or should an
agreement be entered into to accomplish any thereof with respect to more than
Ten percent (10%) of the issued and outstanding capital stock of Trustor if a
corporation or of the beneficial interest of Trustor if a trust or of any
general partnership or joint venturer interest if Trustor is a limited or
general partnership or a joint venture or if there shall occur a change in any
general partner or joint venturer if Trustor is a limited or general partnership
or a joint venture, then Beneficiary may, at its option, declare all sums
secured hereby immediately due and payable unless Beneficiary shall have given
its prior written consent thereto. Consent to one such transaction shall not
be deemed to be a waiver of the right to require such consent to future or
successive transactions. Except as to the partnership interest of X. Xxxxxxx
Xxxxxxxx, which up to 37.5% of this project may be transferred to another
partnership which X. Xxxxxxx Xxxxxxxx is a general partner.
(24) That in the event of the passage after the date hereof of any law
deducting from the value of real property, for taxation purposes, any lien
thereon or changing in any way the laws now in force for the taxation of Deeds
of Trust or debts whether or not secured thereby for Federal, State or Local
purposes or the manner of the collection of any such taxes so as to affect this
Deed of Trust or the obligations hereby secured, Trustor agrees to pay any
thereof and if Trustor fails to so do or if it would be illegal for Trustor so
to do then, the whole of the principal sum secured by this Deed of Trust,
together with accrued interest thereon shall, at the option of the Beneficiary,
without demand or notice, immediately become due and payable.
(25) To the fullest extent permitted by law, Trustor hereby waives the
provisions of Section 431.70 of the California Code of Civil Procedure and all
amendments thereto.
(26) That no remedy herein conferred upon, reserved to Trustor or
Beneficiary is intended to be exclusive or any other remedy herein or by law
provided, but each shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity or by
statute. No delay or omission of Trustee or Beneficiary in the exercising of
any right or power accruing upon any event of default hereunder shall impair
such right or power or any other right or power nor shall the same be construed
to be a waiver of any default or any acquiescence therein; and every power and
remedy given by this Deed of Trust to Trustee or Beneficiary may be exercised
from time to time as often as may be deemed expedient by Trustee or Beneficiary.
If there exists additional security for the obligations secured hereby,
Beneficiary, at its sole option, and without limiting or affecting any of the
rights or remedies hereunder, may exercise any of the rights or remedies to
which it may be entitled hereunder either concurrently with whatever rights it
may have in connection with such other security or in such order and in such
manner as Beneficiary may deem fit without waiving any rights with respect to
any other security. The granting of consent by Beneficiary to any transaction
as required by the terms hereunder shall not be deemed a waiver of the right to
secure the consent of Beneficiary to future or successive transactions.
51
(27) That in the event any one or more of the provisions contained in
this Deed of Trust or in the Promissory Note hereby secured shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Deed of Trust or said Promissory Note, but this Deed of Trust and said
Promissory Note shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein or therein.
(28) This Deed of Trust has been executed and delivered in the State
of California and is to be construed and enforced according to and governed by
the laws thereof except that with respect to any portion of the property
covered hereby located outside of the State of California, only to the extent
required for Trustee or Beneficiary to enforce or realize upon the rights and
remedies hereunder with respect thereto, the laws of the state in which such
property is located shall be applicable hereto.
(29) PARTIAL RECONVEYANCE. Upon the recordation of a final parcel
map with the Office of the County Recorder by the City of San Diego dividing the
property into two separate legal parcels substantially in the manner shown on
Exhibit "A" attached hereto and made a part hereof by this reference,
Beneficiary agrees to cause Trustee to reconvey that portion of the property
identified as parcel 2 on the attached Exhibit "A", which partial reconveyance
of the property shall be conditioned upon: (A) a reduction in the principle
amount of the Promissory Note secured by this Deed of Trust of not less than
$1,710,000.00; and (B) Trustor not being in default under the terms of this
Deed of Trust, the Promissory Note secured hereby, the Building Loan Agreement,
the Security Loan Agreement, the Security Agreement or any of the other loan
documents executed with Beneficiary in conjunction with this Deed of Trust.
The undersigned Trustor requests that a copy of any notice of default
and of any notice of sale hereunder be mailed to him at his address
hereinbefore set forth.
Signature of Trustor Signature of Trustor
WESTERRA PACIFIC ASSOCIATES,
a California General Partnership
By: /s/ XXXXXX X. XXXXXXX, XX.,
--------------------------------
General Partner
By: /s/ X. XXXXXXX XXXXXXXX,
--------------------------------
General Partner
By: WesTerra Executives, Ltd.,
a California limited partnership,
General Partner
By: /s/ XXXXXX X. XXXXXXX, XX.,
---------------------------------
General Partner
STATE OF CALIFORNIA )
) SS.
COUNTY OF SAN DIEGO )
52
[SORRENTO LANDS AND TOWNSITE MAPS 382 & 483]
PRELIMINARY PARCEL MAP
LEGAL DESCRIPTION
Xxx 0 xx Xxxxxxxx Xxxxxxxxxx Xxxx Xxxx Xx. 0, Xxx Xx. 00000.
APPLICANT
Westerra Pacific Associates, a California General Partnership
0000 Xxxxxxxxx Xx., Xxxxx 000
Xxx Xxxxx, XX 00000
/s/ XXXXXX X. XXXXXXX, XX.
----------------------------
Xxxxxx X. Xxxxxxx, Xx.
General Partner
NOTES:
Assessor's Parcel No.: 000-000-00
Present Zone: SR
Proposed Zone: SR
Present Land Use: Vacant
Proposed Land Use: Scientific Research & Office Space
Fire Protection: City of San Diego
Water: City of San Diego
Sewer: City of San Diego
No. of Parcels: 2
Gross Area: 00.0 xxxxx
Xxxxxxx Xxxxxxxxxxx: 260-1703
53
CAT. NO. NN00637 [TICOR TITLE INSURANCE LOGO]
TO 1955 CA (1-83)
(Partnership as a Partner of a Partnership)
STATE OF CALIFORNIA )
) SS.
COUNTY OF SAN DIEGO )
On September 8, 1989 before me, the undersigned, a Notary Public in and for
said State, personally appeared Xxxxxx X. Xxxxxxx, Xx. personally known to me
or proved to me on the basis of satisfactory evidence to be the person__ who
executed the within instruments as one of the partners of Westerra Pacific
Associates, the partnership that executed the within instrument, and
acknowledged to me that they executed the same on behalf of Westerra Executives
Ltd., a partnership, and that said last named partnership executed the same.
WITNESS my hand and official seal.
Signature /s/ XXXXX XXXXX LEMAX
------------------------------------
Xxxxx Xxxxx Lemax
[SEAL]
CAT. NO. NN00630 [TICOR TITLE INSURANCE LOGO]
TO 1946 CA (9-84)
(Partnership)
STATE OF CALIFORNIA )
) SS.
COUNTY OF SAN DIEGO )
On September 8, 1989 before me, the undersigned, a Notary Public in and for
said State, personally appeared Xxxxxx X. Xxxxxxx, Xx. personally known to me
or proved to me on the basis of satisfactory evidence to be the person__ who
executed the within instruments as one of the partners of Westerra Pacific
Associates, the partnership that executed the within instrument, and
acknowledged to me that they executed the same on behalf of Westerra Executives
Ltd., a partnership, and that said last named partnership executed the same.
WITNESS my hand and official seal.
Signature /s/ XXXXX XXXXX LEMAX
------------------------------------
Xxxxx Xxxxx Lemax
[SEAL]
CAT. NO. NN00630 [TICOR TITLE INSURANCE LOGO]
TO 1946 CA (9-84)
(Partnership)
STATE OF CALIFORNIA )
) SS.
COUNTY OF SAN DIEGO )
On September 8, 1989 before me, the undersigned, a Notary Public in and for
said State, personally appeared X. Xxxxxxx Xxxxxxxx personally known to me
or proved to me on the basis of satisfactory evidence to be the person__ who
executed the within instruments as one of the partners of Westerra Pacific
Associates, the partnership that executed the within instrument, and
acknowledged to me that they executed the same on behalf of Westerra Executives
Ltd., a partnership, and that said last named partnership executed the same.
WITNESS my hand and official seal.
Signature /s/ XXXXX XXXXX LEMAX
------------------------------------
Xxxxx Xxxxx Lemax
[SEAL]
54
AND WHEN RECORDED, MAIL TO:
UNION BANK
000 "X" Xxxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxx
[RECORDERS STAMP]
For value received, Undersigned does hereby sell, assign, transfer and set over
to UNION BANK, hereinafter called "Bank", that certain Lease Agreement for the
lease of real property commonly known as Xxxxx Xxxxxx Xxxxx, Xxx Xxxxx,
Xxxxxxxxxx, and legally described as:
Xxx 0 xx XXXXXXXX XXXXXXXXXX XXXX XXXX XX. 0., in the City of San Diego, County
of San Diego, State of California, according to Map thereof No. 10830, filed in
the office of the County Recorder of San Diego County, January 30, 1984.
EXCEPTING THEREFROM all oil, gas, hydrocarbon substances and minerals of every
kind and character lying more than 500 feet below the surface, together with
the right to drill into, through, and to use and occupy all parts of the site
lying more than 500 feet below the surface thereof for any and all purposes
incidental to the exploration for any production of oil, gas, hydrocarbon,
substances or mineral from the site, but without, however, any right to use or
disturb either the surface of the site or any portion thereof within 500 feet
of the surface for any purpose or purposes whatsoever.
dated December 7, 1988, entered into by and between Westerra Pacific
Associates, a California General Partnership herein sometimes called the
"Lessor" and JAYCOR, a California corporation herein called the "Lessee",
together with all rentals and sums due and to become due thereunder.
55
Undersigned does hereby consent that, without further notice and without
releasing the liability of Undersigned, Bank may, at its discretion, give grace
or indulgence in the collection of all rentals and of all other sums due or to
become due on or under the aforesaid Lease Agreement and grant extensions of
time for the payment of the same before, at or after maturity. Undersigned
warrants that all rental payments and other sums due under said Lease Agreement
as well as the right to collect same are hereby vested in Bank; that said
Lease Agreement is genuine; that the said Lessee has capacity to contract; that
Undersigned has the right to make this assignment and that the rental payments
and other sums due thereunder are free from liens, encumbrances, claims and set
offs of every kind whatsoever, and that as of the date hereof, the unpaid
balance of rental payments specified in said Lease Agreement is as is set forth
in said Lease Agreement.
Undersigned agrees that Bank may proceed against Undersigned directly or
independently of the Lessee, and that the cessation of the liability of the
Lessee under said Lease Agreement for any reason other than full payment, shall
not in any way affect the liability of Undersigned hereunder, nor any
extension, forbearance of acceptance, release or substitution of security or
any impairment of suspension of Bank's remedies or rights against the Lessee
shall not in any way affect the liability of Undersigned hereunder.
Bank does not assume any of the obligations arising under said Lease Agreement,
and Lessor does hereby covenant and agree (a) to keep and perform all of the
obligations of the Lessor under said Lease Agreement and to save Bank harmless
from the consequences of any failure so to do; (b) to preserve the subject
property free and clear of liens and encumbrances, except to or with the
consent of Bank; (c) to neither consent to or enter into any alteration,
amendment, cancellation, renewal or extension of said Lease Agreement without
first having obtained the written consent of Bank.
The Lessor hereby irrevocably constitutes and appoints Bank its true and
unlawful attorney to demand, receive and enforce payment and to give receipts,
releases and satisfactions, and to xxx for all sums payable either in the name
of the Lessor, or in the name of the Bank, with the same force and effect as
Lessor could do if this assignment had not been made.
Lessor hereby represents and warrants to Bank that it is the lawful owner of
the above-described Lease and all rights and interests therein, and that will
not assign any other interest in the Lease.
Notice of this assignment may be given to the Lessee at any time at Bank's
option. In the event any payment or payments upon said Lease are made to
Lessor, Lessor agrees promptly to transmit such payment or payments to Bank in
the same form as it is received by Lessor except that Lessor will endorse
checks so received which are payable to Lessor.
The Undersigned is obligated to Bank for the payment of an indebtedness, which
is evidenced by a certain Promissory Note dated September 1, 1989 in the amount
of $17,500,000.00 as well as any other obligation of the Undersigned to Bank
arising out of the loan transaction, and although this Assignment is absolute
and unconditional, by acceptance of this Assignment. Bank agrees that it will
not exercise any of its rights hereunder unless or until there shall be a
default under the terms of said Promissory Note, the Building Loan Agreement,
if any, or any instrument securing said Note.
In the event the Undersigned fails to perform any of the covenants or
agreements herein contained or any of the warranties or representations herein
contained proved to be untrue, then Bank, at its option, may accelerate any
indebtedness secured hereby and demand that payment in full immediately be
made.
This assignment is irrevocable and shall remain in full force and effect until
and unless either of the following shall occur: (1) payment in full of the
indebtedness secured hereby; or (2) execution by Bank of a written release of
this assignment.
Whenever the context so requires, the singular number includes the plural.
Dated at San Diego CA this 1st day of September , 19 89
------------------------- ---------- ---------------- ----
City State
Westerra Pacific Associates, a California
General Partnership
----------------------------------------- ------------------------------------
By: /s/ XXXXXX X. XXXXXXX, XX.
----------------------------------------- ------------------------------------
Xxxxxx X. Xxxxxxx, Xx., General Partner
----------------------------------------- ------------------------------------
By: /s/ X. XXXXXXX XXXXXXXX
----------------------------------------- ------------------------------------
X. Xxxxxxx Xxxxxxxx, General Partner
----------------------------------------- ------------------------------------
By: Westerra Executives, Ltd., a California
Limited Partnership, General Partner
----------------------------------------- ------------------------------------
By: /s/ XXXXXX X. XXXXXXX, XX.
----------------------------------------- ------------------------------------
Xxxxxx X. Xxxxxxx, Xx., General Partner
(ATTACH NOTARIAL ACKNOWLEDGEMENT)
Jaycor, a California corporation hereby assumes the obligations of Borrower
hereunder and agrees to be bound by the terms and conditions of this agreement.
Jaycor, a California corporation
BY:
--------------------------------------
56
STATE OF CALIFORNIA )
) SS.
COUNTY OF SAN DIEGO )
On September 8, 1989, before me, the undersigned, a Notary Public in and for
said State, personally appeared Xxxxxx X. Xxxxxxx, Xx. personally known to me
or proved to me on the basis of satisfactory evidence to be the person who
executed the within instrument as one of the partners of Western Pacific
Associates the partnership that executed the within instrument, and a
partnership, and that said last named partnership executed the same.
WITNESS my hand and official seal.
Signature /s/ XXXXX XXXXX XXXXX [SEAL]
----------------------------------------
(Partnership)
STATE OF CALIFORNIA )
) SS.
COUNTY OF SAN DIEGO )
On September 8, 1989, before me, the undersigned, a Notary Public in and for
said State, personally appeared Xxxxxx X. Xxxxxxx, Xx. personally known to me
(or proved to me on the basis of satisfactory evidence) that executed the
within instrument, and acknowledged to me that such partnership executed the
same.
WITNESS my hand and official seal.
Signature /s/ XXXXX XXXXX XXXXX [SEAL]
----------------------------------------
Xxxxx Xxxxx Xxxxx
-------------------------------------------------
Name (Typed or Printed)
(Partnership)
STATE OF CALIFORNIA )
) SS.
COUNTY OF SAN DIEGO )
On September 8, 1989, before me, the undersigned, a Notary Public in and for
said State, personally appeared E. Sevens Xxxxxxxx personally known to me
(or proved to me on the basis of satisfactory evidence) to be one of the
partners of the partnership that executed the within instrument, and
acknowledged to me that such partnership executed the same.
WITNESS my hand and official seal.
Signature /s/ XXXXX XXXXX XXXXX [SEAL]
----------------------------------------
Xxxxx Xxxxx Xxxxx
-------------------------------------------------
Name (Typed or Printed)
57
Union ------------------ ----------------
Bank SECURITY AGREEMENT CHATTEL MORTGAGE
------------------ ----------------
This Agreement executed at San Diego, California, on September 1, 1989, by
Westerra Pacific Associates, A California General Partnership
-------------------------------------------------------------
INSERT OWNER(S) OF COLLATERAL
(herein called "Debtor"), as security for the payment and performance of all
of Debtor's obligations to UNION BANK (herein called "Bank"), irrespective of
the manner in which or the time at which such obligations arose or shall arise,
and whether direct or indirect, alone or with others, absolute or contingent,
Debtor does hereby grant a continuing security interest to Bank in all personal
property (herein called "Collateral"), whether now or hereafter owned or in
existence described as
A. MOTOR VEHICLES:
--------------------------------------------------------------------------------
YEAR TRADE NAME BODY TYPE SERIAL NUMBER NEW OR USED NUMBER OF CYLINDERS
--------------------------------------------------------------------------------
B. OTHER:
--------------------------------------------------------------------------------
"All articles of personal property and any additions to, substitutions for,
changes in or replacements of the whole or any part thereof, now or at any
time hereafter, affixed to, attached to, placed upon or used in any way in
connection with the use, enjoyment, occupancy or operation of the real
property located "Legal description attached hereto and made a part hereof
marked exhibit A", or any portion thereof and owned by the undersigned or
in which the undersigned has now or hereafter acquires an interest and all
building materials and equipment now or hereafter delivered to said
premises and intended to be installed or placed in or about said premises,
together with the proceeds, including insurance proceeds, thereof".
--------------------------------------------------------------------------------
The Collateral described above will be maintained at ___________________________
________________________________________________________________________________
C. ALL PERSONAL PROPERTY OF ANY KIND WHICH IS DELIVERED TO OR IN THE
POSSESSION OR CONTROL OF BANK OR ITS AGENTS;
D. PROCEEDS OF ANY OF THE ABOVE-DESCRIBED PROPERTY. The grant of a
security interest in proceeds does not imply the right of Debtor to sell
or dispose of any Collateral described herein without the express
consent in writing by Bank.
The maximum amount of indebtedness to be secured at any one time is unlimited
unless an amount is inserted here _____________________________ ($ ).
MAXIMUM AMOUNT
(To be completed only if an accommodation) _____________________________________
________________________________________________________________________________
INSERT OWNER(S) OF COLLATERAL
By executing this Agreement as an Accommodation Debtor only and his liability
is limited to the security interest created in Collateral described herein.
The Debtor being accommodated is _______________________________________________
All terms and conditions on the reverse side hereof are incorporated herein as
though set forth in full.
See Exhibit "B" attached hereto and made
a part hereof by this reference
________________________________________
AFFIX ________________________________________
CORPORATE ________________________________________
SEAL ________________________________________
________________________________________
58
AGREEMENT
1. The term credit is used throughout this Agreement in its broadest and most
comprehensive sense. Credit may be granted at the request of any one Debtor
without further authorization or notice to any other Debtor, including an
Accommodation Debtor. Collateral shall be security for all obligations of
Debtor to Bank in accordance with the terms and conditions herein.
2. Debtor will: (a) execute such Financing Statement and other documents and do
such other acts and things, all as Bank may from time to time require, to
establish and maintain a valid security interest in Collateral, including
payment of all costs and fees in connection with any of the foregoing when
deemed necessary by Bank; (b) pay promptly when due all indebtedness to Bank;
(c) furnish Bank such information concerning Debtor and Collateral as Bank may
from time to time request, including but not limited to current financial
statements; (d) keep Collateral separate and identifiable and at the location
described herein and permit Bank and its representatives to inspect Collateral
and/or records pertaining thereto from time to time during normal business
hours; (e) not sell, assign or create or permit to exist any lien on or
security interest in Collateral in favor of anyone other than the Bank unless
Bank consents thereto in writing and at Debtor's expense upon Bank's request
remove any unauthorized lien or security interest and defend any claim
affecting the Collateral; (f) pay all charges against Collateral prior to
delinquency including but not limited to taxes, assessments, encumbrances,
insurance and diverse claims, and upon Debtor's failure to do so Bank may pay
any such charge as it deems necessary and add the amount paid to the
indebtedness of Debtor hereunder; (g) reimburse Bank for any expenses including
but not limited to reasonable attorneys' fees and legal expenses incurred by
Bank in seeking to protect, collect or enforce any rights in Collateral; (h)
when required, provide insurance in form and amounts and with companies
acceptable to Bank and when required assign the policies or the rights
thereunder to Bank; (i) maintain Collateral in good condition and not use
Collateral for any unlawful purpose; (j) at its own expense, upon request of
Bank, notify any parties obligated to Debtor on any Collateral to make payment
to Bank and Debtor hereby irrevocably grants Bank power of attorney to make said
notifications and collections; (k) and does hereby authorize Bank to perform
any and all acts which Bank in good xxxxx xxxxx necessary for the protection
and preservation of Collateral or its value or Bank's security interest therein,
including transferring any Collateral into its own name and receiving the
income thereon as additional security hereunder. Bank may not exercise any
right under any corporate security which might constitute the exercise of
control by Bank so as to make any such corporation an affiliate of Bank within
the meaning of the banking laws until after default.
3. The term default shall mean the occurrence of any of the following events:
(a) non-payment of any indebtedness when due or non-performance of any
obligation when due, whether required hereunder or otherwise; (b) deterioration
or impairment of the value of Collateral; (c) non-performance by Debtor under
this Agreement, default by Debtor of any other agreements with Bank dealing with
the extension of credit or with debt owing Bank or any misrepresentation of
Debtor or its representative to Bank whether or not contained herein; (d) a
change in the composition of any Debtor which is a business entity; or (e)
belief by Bank in good faith that there exists, or the actual existence of, any
deterioration or impairment in the ability of Debtor to meet its obligations to
Bank.
4. Whenever a default exists, Bank, at its option may: (a) without notice
accelerate the maturity of any part or all of the secured obligations and
terminate any agreement for the granting of further credit to Debtor; (b) sell,
lease or otherwise dispose of Collateral at public or private sale; unless
Collateral is perishable and threatens to decline speedily in value or is a
type customarily sold on a recognized market, Bank will give Debtor at least
five (5) days' prior written notice of the time and place of any public sale or
of the time after which any private sale or any other intended disposition may
be made; (c) transfer any Collateral into its own name or that of its nominee;
(d) retain Collateral in satisfaction of obligations secured hereby, with
notice of such retention sent to Debtor as required by law; (e) notify any
parties obligated on any Collateral consisting of accounts, instruments,
chattel paper, chooses in action or the like to make payment to Bank and enforce
collection of any Collateral herein; (f) require Debtor to assemble and deliver
any Collateral to Bank at a reasonable convenient place designated by Bank; (g)
apply all sums received or collected from or on account of Collateral including
the proceeds of any sales thereof to the payment of the costs and expenses
incurred in preserving and enforcing rights of Bank including but not limited
to reasonable attorneys' fees, and indebtedness secured hereby in such order
and manner as Bank in its sole discretion determines; Bank shall account to
Debtor for any surplus remaining thereafter, and shall pay such surplus to the
party entitled thereto, including any second secured party who has made a
proper demand upon Bank and has furnished proof to Bank as requested in the
manner provided by law; in like manner, Debtor, unless an Accommodation Debtor
only, agrees to pay to Bank without demand any deficiency after any Collateral
has been disposed of and proceeds applied as aforesaid; and (h) exercise its
Banker's lien or right of setoff in the same manner as though the credit were
unsecured. Bank shall have all the rights and remedies of a secured party under
the Uniform Commercial Code of California in any jurisdiction where enforcement
is sought, whether in California or elsewhere. All rights, powers and remedies
of Bank hereunder shall be cumulative and not alternative. No delay on the
part of Bank in the exercise of any right or remedy shall constitute a waiver
thereof and no exercise by Bank of any right or remedy shall preclude the
exercise of any other right or remedy or further exercise of the same remedy.
5. Debtor waives: (a) all right to require Bank to proceed against any other
person including any other Debtor hereunder or to apply any Collateral Bank may
hold at any time or to pursue any other remedy; Collateral, endorsers or
guarantors may be released, substituted or added without affecting the
liability of Debtor hereunder; (b) the defense of the Statute of Limitations in
any action upon any obligations of Debtor secured hereby; (c) if he is an
Accommodation Debtor, all rights under Uniform Commercial Code Section 9112;
and (d) any right of subrogation and any right to participate in Collateral
until all obligations hereby secured have been paid in full.
6. Debtor warrants: (a) that it is or will be the lawful owner of all
Collateral free of all claims, liens or encumbrances whatsoever, other than the
security interest granted pursuant hereto; (b) all information, including but
not limited to financial statements furnished by Debtor to Bank heretofore or
hereafter, whether oral or written, is and will be correct and true as of the
date given; and (c) if Debtor is a business entity, the execution, delivery and
performance hereof are within its powers and have been duly authorized.
7. The right of Bank to have recourse against Collateral shall not be affected
in any way by the fact that the credit is secured by a mortgage, deed of Trust
or other lien upon real property.
8. Debtor may terminate this Agreement at any time upon written notice to Bank
of such termination; provided, however, that such termination shall not affect
his obligations then outstanding, any extensions or renewals thereof, nor the
security interest granted herein which shall continue until such outstanding
obligations are satisfied in full. Such termination shall not affect the
obligations of other Debtors if more than one executes this Agreement.
9. If more than one Debtor executes this Agreement, the obligations hereunder
are joint and several. All words used herein in the singular shall be deemed to
have been used in the plural when the context and construction so require. Any
married persons who sign this Agreement expressly agree that recourse may be
had against his/her separate property for all of his/her obligations to Bank.
10. This Agreement shall inure to the benefit of and bind Bank, its successors
and assigns and each of the undersigned, their respective heirs, executors,
administrators and successors in interest. Upon transfer by Bank of any part of
the obligations secured hereby, Bank shall be fully discharged from all
liability with respect to Collateral transferred therewith.
11. Whenever possible each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but, if any
provision of this Agreement shall be prohibited or invalid under applicable law,
such provisions shall be ineffective to the extent of such prohibition or
invalidity without invalidating the remainder of such or the remaining
provisions of this Agreement.
59
EXHIBIT "A"
Xxx 0 xx XXXXXXXX XXXXXXXXXX XXXX XXXX XX. 0, in the City of San Diego, County
of San Diego, State of California, according to Map thereof No. 10830, filed in
the Office of the County Recorder of San Diego County, January 30, 1984.
[initial here] [initial here]
60
EXHIBIT "B"
WESTERRA PACIFIC ASSOCIATES, a California
General Partnership
By: /s/ XXXXXX X. XXXXXXX
--------------------------------------
Xxxxxx X. Xxxxxxx, Xx. General Partner
By: /s/ E. XXXXXX XXXXXXXX
--------------------------------------
E. Xxxxxx Xxxxxxxx, General Partner
By: Westerra Executives, Ltd., a California
Limited Partnership, General Partner
By: /s/ XXXXXX X. XXXXXXX
--------------------------------------
Xxxxxx X. Xxxxxxx, Xx. General Partner
Jaycor, a California corporation hereby assumes the obligations of Borrower
hereunder and agrees to be bound by the terms and conditions of this agreement.
Jaycor, a California corporation
By:
------------------------------
61
[UNION BANK LETTERHEAD]
September 1, 1989
WESTERRA PACIFIC ASSOCIATES
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX. 00000
Gentlemen:
This refers to your Promissory Note dated September 1, 1989 in the principal
amount of $17,500,000.00. The term of said note is eighteen months. It is our
understanding that, subject to there then being no default in said loan as
evidenced by the loan documents, including but not limited to said Promissory
Note and the Deed of Trust securing same, no substantial deterioration, in our
sole judgement, of your financial condition we agree to extend said Note for
three six-month periods. The first extension shall be six months from the
original maturity. The second extension shall be six months from the maturity
of the first extension. The third shall be six months from the maturity of the
second extension. Each such extension shall be at a rate which is
three-quarters (.75%) per annum in excess of the then Union Bank reference rate
of interest, adjusted daily, on the principal balance of said note at the time
of said extension.
In consideration for extending the maturity date of said loan, an extension fee
of 1/4 of 1% of the commitment outstanding will be charged for each six month
extension.
Borrower agrees to the necessary expenses incurred for recording charges and
for those appropriate title endorsements required by Bank.
62
If this is in accordance with your understanding of our agreement, please
execute the enclosed copy of this letter and return it to us.
sincerely,
UNION BANK,
a California Corporation
By: /s/ XXXX X. XXXXXXX
-------------------------------------------
Xxxx X. Xxxxxxx, Xx. Vice President
By: /s/ J. XXXXXX XXXXXX
-------------------------------------------
J. Xxxxxx Xxxxxx, Vice President
ACCEPTED AND APPROVED:
WESTERRA PACIFIC ASSOCIATES,
a California General Partnership
By: /s/ XXXXXX X. XXXXXXX, XX.
-------------------------------------------
Xxxxxx X. Xxxxxxx, Xx., General Partner
By: /s/ X. XXXXXXX XXXXXXXX
-------------------------------------------
X. Xxxxxxx Xxxxxxxx, General Partner
By: Westerra Executives Ltd., a California
Limited Partnership, General Partner
By: /s/ XXXXXX X. XXXXXXX, XX.
---------------------------------------
Xxxxxx X. Xxxxxxx Xx., General Partner
63
UNION LOAN NUMBER
BANK AMENDMENT AGREEMENT 4160115-647-000647
DATE
May 23, 1991
The undersigned Borrower(s) and Union Bank agree that that certain note for
$17,500,000.00, dated September 1, 1989, executed by WESTERRA PACIFIC
ASSOCIATES, a California General Partnership upon which there remains unpaid a
disbursed principal balance of $15,182,645.39 and upon which interest has been
paid to May 1, 1991, and $315,275.10 which is undisbursed, said note being
secured by a Deed of Trust recorded on September 11, 1989 as Instrument No.
89-488385. Official Records, in the office of the County Record of San Diego
County, California, be and the same is hereby amended as follows:
The date of maturity is amended from March 11, 1991
to September 11, 1991.
Effective March 11, 1991, the interest rate is
amended from three-quarters of a percent (.75%) to
One and Three Eights percent (1.375%) per annum in
excess of the Union Bank Reference Rate.
Undisbursed funds in the amount of $315,275.10 will
hereby be cancelled and not disbursed under this
loan commitment.
In consideration of the foregoing amendment, each of the undersigned
Borrower(s) assumes and agrees (whether or not an original maker of the note)
to pay the indebtedness evidenced by said note as hereby amended and to perform
each and all of the conditions and covenants required to be performed by the
Trustor pursuant to said Deed of Trust.
In all other respects, the Promissory Note and Deed of Trust described above
shall remain in full force and effect in accordance with their original terms
and conditions. The foregoing amendment shall be subject to all of the
conditions and covenants expressed in said Promissory Note or in said Deed of
Trust including among others those providing for the acceleration of maturity
and for the enforcement of the provisions of said Promissory Note and said Deed
of Trust in the event of default in the performance of any obligation, which
provisions relating to default and/or acceleration shall be applicable to
obligations hereby amended as well as to obligations not so amended.
In order to induce Union Bank to execute this agreement, the undersigned
Borrower(s) represents and warrants that title to the real property described
in said Deed of Trust is now vested in WESTERRA PACIFIC ASSOCIATES, a
California General Partnership subject only to those matters existing at the
time of recordation of said Deed of Trust, current taxes, and the following:
None
and that no one other than the undersigned Borrower(s) has any interest in said
real property except as hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have executed this agreement the day and
year first hereinabove written.
-------------------------------------- --------------------------------------
UNION BANK BORROWER(S)
-------------------------------------- --------------------------------------
By /s/ J. XXXXXX XXXXXX See Reverse For Signatures
-------------------------------------- --------------------------------------
J. Xxxxxx Xxxxxx, Vice President
By /s/ XXXXX XXXXXXX
-------------------------------------- --------------------------------------
Xxxxx Xxxxxxx, Account Officer
--------------------------------------
--------------------------------------
--------------------------------------
--------------------------------------
--------------------------------------
--------------------------------------
-------------------------------------------------------------------------------
EACH OF THE UNDERSIGNED AGREES AND CONSENTS TO THE FOREGOING AMENDMENT.
-------------------------------------------------------------------------------
/s/ XXXXXX X. XXXXXXX, XX.
-------------------------------------- --------------------------------------
Xxxxxx X. Xxxxxxx, Xx.
-------------------------------------- --------------------------------------
-------------------------------------- --------------------------------------
-------------------------------------- --------------------------------------
64
WESTERRA PACIFIC ASSOCIATES,
a California General Partnership
By: /s/ XXXXXX X. XXXXXXX, XX.
---------------------------------
Xxxxxx X. Xxxxxxx, Xx.,
General Partner
By: WESTERRA EXECUTIVES, LTD.,
a California limited partnership,
General Partner
By: /s/ XXXXXX X. XXXXXXX, XX.
------------------------------
Xxxxxx X. Xxxxxxx, Xx.,
General Partner
By: Romanow Family Partners, L.P.,
a California limited partnership,
General Partner
By: /s/ XXXXXX X. XXXXXXX, XX.
-------------------------------
Xxxxxx X. Xxxxxxx, Xx.,
General Partner
Jaycor, a California corporation hereby assumes the obligations of Borrower
hereunder and agrees to be bound by the terms and conditions of this agreement.
Jaycor, a California corporation
By:
------------------------------
65
UNION BANK
AND WHEN RECORDED, MAIL TO
UNION BANK
0000 Xx Xxxxx Xxxxxxx Xxxxx #000
Xxx Xxxxx, XX 00000
ATTN: X. Xxxxxxxx
[STAMP]
AMENDMENT AGREEMENT
PROMISSORY NOTE AND DEED OF TRUST
(SHORT FORM)
Dated: May 23, 1991
The undersigned agree that the following documents: (i) that certain note
dated September 1, 1989, in the original principal amount of $17,500,000.00 and
(ii) Deed of Trust securing same executed by WESTERRA PACIFIC ASSOCIATES,* as
Trustor on September 11, 1989 as Instrument No. 89-488385 in the Official
Records in the Office of the County Recorder of San Diego County, California,
be and the same are amended upon the terms and conditions set forth in that
certain Amendment Agreement between the undersigned dated May 23, 1991. Said
Amendment Agreement is by this reference incorporated herein and made a part
hereof.
UNION BANK TRUSTOR(S)
WESTERRA PACIFIC ASSOCIATES,
By: /s/ J. XXXXXX XXXXXX a California General Partnership
----------------------------------- ------------------------------------
J. Xxxxxx Xxxxxx, Vice President
By: /s/ XXXXXX X. XXXXXXX, XX.
---------------------------------
Xxxxxx X. Xxxxxxx, Xx.,
General Partner
By: /s/ XXXXX XXXXXXX
----------------------------------- ------------------------------------
Xxxxx Xxxxxxx, Account Officer By: WESTERRA EXECUTIVES, LTD.,
a California limited partnership,
General Partner
* a California General Partner By: /s/ XXXXXX X. XXXXXXX, XX.
---------------------------
General Partner
By: Romanow Family Partners, L.P.
---------------------------------
a California limited partnership,
General Partner
By: /s/ XXXXXX X. XXXXXXX, XX.
-----------------------------
Xxxxxx X. Xxxxxxx, Xx.,
General Partner
State of California )
)
County of San Diego )
On June 28, 1991, before me, Xxxxxx X. Xxxx, Notary Public, personally appeared
J. Xxxxxx Xxxxxx, Vice President, and Xxxxx Xxxxxxx, Account Officer,
respectfully, of Union Bank, personally known to me to be the person(s) whose
name(s) are subscribed to he within instrument and acknowledged to me that they
executed the same in their authorized capacity(ies), and that by 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.
Signature: /s/ XXXXXX X. XXXX
-------------------
[OFFICIAL NOTARY PUBLIC SEAL]
Jaycor, a California corporation hereby assumes the obligations of Borrower
hereunder and agrees to be bound by the terms and conditions of this agreement.
Jaycor, a California corporation
BY:
----------------------------
66
SUPERSEDES AND AMENDS LETTER DATED
SEPTEMBER 1, 1989
May 23, 1991
WESTERRA PACIFIC ASSOCIATES
000 Xxxxxxxx Xxxxx
Xxxxxxx, X.X. 00000
Gentlemen:
This refers to your Promissory Note dated September 1, 1989 in the principal
amount of $17,500,000.00. The maturity of said loan is March 11, 1991. It is
our understanding that, subject to there then being no default in said loan as
evidenced by the loan documents, including but not limited to said Promissory
Note and the Deed of Trust securing same, no substantial deterioration, in our
sole judgement, of your financial condition, and we are in receipt of an
amendment to the existing $1,000,000.00 Letter of Credit extending the maturity
date of said Letter of Credit, we agree to extend said Note for three six month
periods. The first extension shall be from March 11, 1991 to September 11,
1991. The second extension shall be from September 11, 1991 to March 11, 1992.
The third extension shall be from March 11, 1992 to September 11, 1992. Each
such extension shall be at a rate which is One and Three-Eights percent (1.375%)
per annum in excess of the then Union Bank reference rate of interest, adjusted
daily, on the principal balance of said note at the time of said extension.
In extending the maturity date of said loan, there will not be an extension fee
charged for each six month extension.
Borrower agrees to the necessary expenses incurred for recording charges and
for those appropriate title endorsements required by Bank.
SEE REVERSE FOR SIGNATURES
67
WESTERRA PACIFIC ASSOCIATES,
a California General Partnership
By: /s/ XXXXXX X. XXXXXXX, XX.
-----------------------------------------
Xxxxxx X. Xxxxxxx, Xx., General Partner
By: WESTERRA EXECUTIVES, LTD., a
California limited partnership,
General Partner
By: /s/ XXXXXX X. XXXXXXX, XX.
-------------------------------------
Xxxxxx X. Xxxxxxx, Xx.,
General Partner
By: Romanow Family Partners, L.P., a
California limited partnership
General Partner
By: /s/ XXXXXX X. XXXXXXX, XX.
-------------------------------------
Xxxxxx X. Xxxxxxx, Xx.,
General Partner
68
-----------------------------
LOAN NUMBER
4160115-647-000647
UNION AMENDMENT AGREEMENT -----------------------------
BANK DATE
September 4, 1991
-----------------------------
The undersigned Borrower(s) and Union Bank agree that that certain note for
$17,500,000.00, dated September 1, 1989*, executed by WESTERRA PACIFIC
ASSOCIATES, a California General Partnership upon which there remains unpaid a
disbursed principal balance of $15,182,645.39 and upon which interest has been
paid to July 1, 1991, and $-0- which is undisbursed, said note being secured by
a Deed of Trust recorded on September 11, 1989 as Instrument No. 89-488385,
Official Records, in the office of the County Recorder of San Diego County,
California, be and the same is hereby amended as follows:
The date of maturity is amended from September 11, 1991 to March 11, 1992.
In consideration of the foregoing amendment, each of the undersigned
Borrower(s) assumes and agrees (whether or not an original maker of the note)
to pay the indebtedness evidenced by said note as hereby amended and to perform
each and all of the conditions and covenants required to be performed by the
Trustor pursuant to said Deed of Trust.
In all other respects, the Promissory Note and Deed of Trust described above
shall remain in full force and effect in accordance with their original terms
and conditions. The foregoing amendment shall be subject to all of the
conditions and covenants expressed in said Promissory Note or in said Deed of
Trust including among others those providing for the acceleration of maturity
and for the enforcement of the provisions of said Promissory Note and said Deed
of Trust in the event of default in the performance of any obligation, which
provisions relating to default and/or acceleration shall be applicable to
obligations hereby amended as well as to obligations not so amended.
In order to induce Union Bank to execute this agreement, the undersigned
Borrower(s) represents and warrants that title to the real property described
in said Deed of Trust is now vested in WESTERRA PACIFIC ASSOCIATES, a
California General Partnership subject only to those matters existing at the
time of recordation of said Deed of Trust, current taxes, and the following:
None
and that no one other than the undersigned Borrower(s) has any interest in said
real property except as hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have executed this agreement the day and
year first hereinabove written.
UNION BANK BORROWER(S)
By /s/ XXXX X. XXXXXXX See Reverse for Signatures
------------------------------------- ------------------------------------
Xxxx X. Xxxxxxx, Xx. Vice President INITIAL
HERE
By /s/ XXXXX XXXXXXX [SIG]
------------------------------------- ------------------------------------
Xxxxx Xxxxxxx, Account Officer
------------------------------------
* And amended by that certain Amendment
Agreement dated May 23, 1991. ------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
EACH OF THE UNDERSIGNED AGREES AND CONSENTS TO THE FOREGOING AMENDMENT.
/s/ XXXXXX X. XXXXXXX, XX.
--------------------------------------- ------------------------------------
Xxxxxx X. Xxxxxxx, Xx.
--------------------------------------- ------------------------------------
--------------------------------------- ------------------------------------
--------------------------------------- ------------------------------------
00
XXXXXXXX XXXXXXX XXXXXXXXXX,
Xxxxxxxxxx General Partnership
By: /s/ XXXXXX X. XXXXXXX, XX.
----------------------------------------
Xxxxxx X. Xxxxxxx, Xx., General Partner
By: WESTERRA EXECUTIVES, LTD., a
California limited partnership,
General Partner
By: /s/ XXXXXX X. XXXXXXX, XX.
------------------------------------
Xxxxxx X. Xxxxxxx, Xx.,
General Partner
By: Romanow Family Partners, L.P., a
California limited partnership
General Partner
By: /s/ XXXXXX X. XXXXXXX, XX.
------------------------------------
Xxxxxx X. Xxxxxxx, Xx.,
General Partner
Jaycor, a California corporation hereby assumes the obligations of Borrower
hereunder and agrees to be bound by the terms and conditions of this agreement.
Jaycor, a California corporation
BY:
----------------------------------
70
RECORDING REQUESTED BY DOC # 1991-0629258
FOUNDERS TITLE CO. 06-DEC-1991 08:00 AM
UNION BANK
AND WHEN RECORDED, MAIL TO OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
Name UNION BANK XXXXXXX XXXXX, COUNTRY RECORDER
RF: 5.00 FEES: 11.00
Street 0000 Xx Xxxxx Xxxxxxx Xxxxx #000 AF: 5.00
Address MF: 1.00
City Xxx Xxxxx, XX 00000
State
Zip ATTN: X. XXXXXXXX SPACE ABOVE THIS LINE FOR RECORDER'S USE
---------------------------------------------------------------------------------------------
AMENDMENT AGREEMENT
PROMISSORY NOTE AND DEED OF TRUST
(SHORT FORM)
Dated: September 4, 1991
The undersigned agree that the following documents: (i) that certain note dated
September 1, 1989, in the original principal amount of $17,500,000.00* and (ii)
Deed of Trust securing same executed by WESTERRA PACIFIC ASSOCIATES, ** as
Trustor recorded on September 11, 1989 as Instrument No. 89-488385 in the
Official Records in the Office of the County Recorder of San Diego County,
California, be and the same are amended upon the terms and conditions set forth
in that certain Amendment Agreement between the undersigned dated September 4,
1991. Said Amendment Agreement is by this reference incorproated herein and
made a part hereof.
UNION BANK TRUSTOR(S)
By /s/ XXXX X. XXXXXXX See Reverse For Signatures
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Xxxx X. Xxxxxxx, Xx. Vice President
[INITIAL]
By /s/ XXXXX XXXXXXX
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Xxxxx Xxxxxxx, Account Officer
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* And amended by that certain Amendment --------------------------
Agreement dated May 23, 1991.
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** a California General Partnership
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State of California )
)
County of San Diego )
On october 22, 1991 before me, Xxxxxxx Xxxxxxxx, a Notary Public,
pesonally appeared Xxxx X. Xxxxxxx, Xx. Vice President and Xxxxx Xxxxxxx,
Account Officer, respectively of Union Bank personally known to me to be the
person(s) whose name(s) are subscribed to the within instrument and
acknowledged to me that they executed the same in their authorized
capacity(ies), and that by 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.
Signature /s/ XXXXXXX XXXXXXXX [SEAL]
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WESTERRA PACIFIC ASSOCIATES,
a California General Partnership
By: XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx, Xx. General Partner
By: WESTERRA EXECUTIVES, LTD., a
California Limited partnership,
General Partner
By: XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx, Xx.
General Partner
By: Xxxxxxx Family Partners, L.P. a
California Limited partnership,
General Partner
By: XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx, Xx.
General Partner
Jaycor, a California corporation hereby assumes the obligations of Borrower
hereunder and agrees to be bound by the terms and conditions of this agreement.
Jaycor, a California corporation
By:
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
LOEB AND LOEB
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx., Esq.
--------------------SPACE ABOVE THIS LINE FOR RECORDER'S USE--------------------
MODIFICATION AGREEMENT
THIS MODIFICATION AGREEMENT ("Agreement"), is made and entered into as
of March 11, 1992, by and between UNION BANK, a California corporation
("Lender"), and WESTERRA PACIFIC ASSOCIATES, a California general partnership
("Borrower"), with respect to the following facts:
A. Lender has heretofore made to Borrower a $17,500,000 loan (the
"Loan") evidenced by that certain Note Secured by Deed of Trust (Floating Rate
Note), dated September 1, 1989 in the original principal amount of $17,500,000,
executed by Borrower and payable to the order of Lender. Said Note was
amended, in certain respects, pursuant to the terms of the following documents
executed by Borrower and Lender: (i) Letter Amendment dated September 1, 1989,
(ii) Amendment Agreement dated May 23, 1991, and Amendment Promissory Note and
Deed of Trust (Short Form) dated May 23, 1991, and recorded on July 3, 1991, as
Instrument No. 1991-0328337, in the Official Records of San Diego County,
California (the "Official Records"), (iii) Letter Amendment dated May 23, 1991,
and (iv) Amendment Agreement dated September 4, 1991, and Amendment Agreement
Promissory Note and Deed of Trust (Short Form) dated September 4, 1991, and
recorded on December 6, 1991, as Instrument No. 1991-0629258, in the Official
Records. Said Note, as amended, shall be referred to herein as the "Note".
B. The Note is secured by, among other things, that certain
Construction Deed of Trust and Assignment of Rents dated September 1, 1989,
executed by Borrower, as Trustor, to Lender as Trustee, in favor of Lender as
Beneficiary, and recorded on September 11, 1989, as Instrument No. 89-488385,
in the Official Records. Said Deed of Trust was amended, in certain respects,
pursuant to the terms of the Letter Amendments and the Amendment Agreements
referred to in Recital A above, and as so amended shall be referred to herein
as the "Deed of Trust".
C. The Deed of Trust currently encumbers certain real property,
and the improvements thereto, located in San Diego County, California, which
property is more particularly described therein (the "Property").
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D. The Note, the Deed of Trust and nay other documents executed by
Borrower and/or Lender in connection with the Loan are hereinafter collectively
referred to as the "Loan Documents".
E. In connection with Borrower's execution of the Note, Xxxxxx X.
Xxxxxxx, Xx. executed that certain Continuing Guaranty, dated September 1,
1989, in favor of Lender.
F. Lender and Borrower desire to modify the terms of the Loan
Documents upon the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises and agreements
hereinafter contained, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Lender and Borrower hereby
agree as follows:
1. Maturity Date. As of the date hereof, the maturity date of the
Note (i.e., the date upon which the total unpaid principal balance of the Note
and all accrued but unpaid interest thereon shall be due and payable) shall be
January 31, 1993 (the "New Maturity Date").
2. Interest Rate. As of the date hereof, interest on the unpaid
principal balance of the Note shall accrue at the per annum rate of one and
five-eighths percent (1.625%) in excess of the Reference Rate (as such term is
defined in the Note). Borrower shall continue to be obligated to make the
monthly interest payments on the Note in accordance with the provisions thereof
(i.e., in arrears on the first day of each and every month).
3. Further Modification of the Deed of Trust. The Deed of Trust is
hereby further modified to provide that the "promissory note" referred to
therein shall refer to the Note as modified hereby.
4. Outstanding Principal Balance. Borrower acknowledges that the
outstanding principal balance of the Note, as of the date hereof, is
$15,182,645.39.
5. Conditions Precedent. Borrower shall satisfy all the conditions
set forth below on or before the Closing Date (as defined herein):
(a) Borrower shall execute and deliver to Lender four (4)
counterpart originals of this Agreement.
(b) Borrower shall deliver to Lender the written consent to the
transactions contemplated by this Agreement of such persons or entities as
Lender shall reasonably require.
(c) Borrower shall execute and deliver to Lender and shall cause
its general partners to execute and deliver to Lender, a Release in favor of
Lender, in form and substance satisfactory to Lender.
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(d) Borrower shall cause Founders Title Insurance Company to
issue such endorsements as Lender shall reasonably require to its ALTA Loan
Policy of Title Insurance No. AC883198, including, without limitation, CLTA
Endorsement No. 110.5 (with only those exceptions acceptable to Lender) and CLTA
Endorsement No. 111.8, insuring the priority of the Lien of the Deed of Trust as
of the Closing Date.
(e) Borrower shall pay to Lender, in immediately available
funds, an amount which shall bring current all accrued but unpaid interest due
and owing on the Note as of the Closing Date.
(f) Borrower shall pay to Lender, in immediately available
funds, $5,000 of the $10,000 in costs and expenses referred to in Paragraph 8
hereof.
(g) Borrower shall deliver to Lender the written consent of
JAYCOR, a California corporation ("JAYCOR"), and such other persons as Lender
shall require, to the transactions contemplated by this Agreement.
(h) Borrower shall deliver to Lender a true, correct and
complete copy of each and every agreement executed by and between JAYCOR and
Borrower relating to the Property.
(i) Borrower shall deliver to Lender a copy of all monthly
operating statements, expense reports, balance sheets and other financial
reports, relating to the Property prepared by Borrower or on the behalf of
Borrower for the period covering the calendar year 1991.
(j) Borrower shall deliver to Lender either (i) a true,
correct and complete current, updated financial statement of Borrower prepared
by an independent Certified Public Accountant (the "Financial Statement"), or
(ii) a detailed written statement, certified by Borrower to be true, correct and
complete as of the Closing Date, setting forth Borrower's financial condition as
of the Closing Date, which statement shall include the same, or substantially
similar, type of information that would be set forth in the Financial Statement
("Financial Statement Verification").
(k) Borrower shall cause each of its general partners to
deliver to Lender either (i) a true, correct and complete current, updated
financial statement of that general partner prepared by an independent Certified
Public Accountant (individually, a "Partner's Financial Statement") or (ii) a
detailed written statement, certified by the relevant general partner to be
true, correct and complete as of the Closing Date, setting forth that general
partner's financial condition as of the Closing Date, which statement shall
include the same, or substantially similar, type of information that would be
set forth in that Partner's Financial Statement (individually a "Partner's
Financial Verification").
(l) Borrower shall cause to be delivered to Lender such
additional documents, financing statements, resolutions, certificates, articles
of incorporation,
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bylaws, certificates of good standing, consents, opinions and other items as
Lender may require in order to consummate the transactions contemplated by this
Agreement.
6. Further Financial Conditions. Notwithstanding anything to the
contrary contained in any of the Loan Documents, commencing on May 20, 1992, and
by the twenty-fifth (25th) day of each month thereafter, Borrower shall deliver,
and shall cause its general partners to deliver, to Lender a monthly update of
the Financial Statement or Financial Statement Verification (as applicable) and
a monthly update of each Partner's Financial Statement or Partner's Financial
Verification. Such monthly financial updates shall cover the immediately
preceding month and shall include, without limitation, the cash balances of the
Borrower and its general partners, a reconciliation of any change in said cash
balances, receipts and expenditures of the Borrower, and any other information
which Lender may reasonably require from time to time.
7. Closing Date. The term "Closing Date" as used herein shall
mean April 27, 1992, or such earlier or later date as may be agreed to in
writing by all the parties hereto.
8. Costs. Borrower shall pay to the Lender the sum of $10,000 to
cover a portion of the costs and expenses incurred by Lender in connection
herewith, as follows: (a) $5,000 on or before the Closing Date, and (b) $5,000
on or before the New Maturity Date or the date upon which the Loan is paid in
full, whichever is earlier.
9. Notice. Notwithstanding anything to the contrary contained in
the Loan Documents, all communications, notices and demands of any kind which
any party hereto may be required or may desire to serve upon any other party
shall be in writing and shall be personally served upon such party, mailed by
United States registered or certified mail, postage prepaid, return receipt
requested, or sent by a locally recognized courier service for same day or next
day delivery, to be confirmed in writing by such courier, addressed as follows:
If to Lender: Union Bank
San Diego Construction
Loan Center
0000 Xx Xxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Mr. Xxxxx Xxxxxxx,
Assistant Vice President
With a copy to: Loeb and Loeb
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx., Esq.
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If to Borrower: Westerra Pacific Associates
c/o Total Care
000 Xxxxxx Xxxx
Xxx 000
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xx. X.X. Xxxxxxx
With a copy to: Xxxxxxx & Xxxxx
000 X Xxxxxx
Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Arlington Xxx
Xxxxxxx, Esq.
Any party may change its address by giving the other parties written
notice of its new address as herein provided. Notices given in the manner
aforesaid shall be deemed delivered when actually received or refused by
the party to whom sent, unless such notice is mailed as aforesaid, in which
event such notice shall be deemed complete on the day of actual delivery as
shown by the return receipt or at the expiration of the third (3rd) business
day after the date of mailing, whichever first occurs.
10. Reaffirmation of Obligations. Borrower hereby ratifies and
reaffirms all its obligations, representations and warranties under the Loan
Documents, as amended by this Agreement and agrees to pay the indebtedness
evidenced by the Loan Documents according to the terms and provisions thereof,
as hereby modified. Except as hereby modified, all of the terms, covenants and
provisions of the Note, the Deed of Trust and the related Loan Documents shall
remain in full force and effect. Without limiting the generality of the
foregoing, Borrower hereby expressly acknowledges and agrees that, as of the
date of the Closing Date, Borrower does not have any offsets, claims or
defenses whatsoever against any of its obligations under the Note, the Deed of
Trust or any of the other Loan Documents.
11. Entire Agreement. This Agreement contains the entire understanding
between Lender and Borrower with respect to the subject matter hereof and shall
not be amended except by a writing signed by all the parties hereto.
12. Successors and Assigns. This Agreement shall be binding upon, and
shall inure to the benefit of, Borrower and Lender and their respective
successors and assigns.
13. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California. Each of the parties
hereto hereby irrevocably submits to the exclusive jurisdiction of any State of
California or Federal Court sitting in the city of San Diego over any suit,
action or proceeding arising out of or related to this Agreement or any of the
Loan Documents.
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14. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which, together, shall
constitute one and the same instrument.
15. Representation by Counsel. Borrower has retained counsel to
represent it in the transaction contemplated herein; Borrower has read and
understands this Agreement; and Borrower has been advised by its counsel with
respect to its rights and obligations under this Agreement; and the principle
of construction against draftsmen shall have no application in the
interpretation of this Agreement.
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16. Waiver of Trial by Jury. BORROWER HEREBY EXPRESSLY, KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
WITH RESPECT TO ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH, THIS AGREEMENT, ANY OF THE LOAN DOCUMENTS, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS
OF ANY OF THE PARTIES TO THIS AGREEMENT. THIS PROVISION IS A MATERIAL
INDUCEMENT TO LENDER EXECUTING THIS AGREEMENT.
[SIG]
--------------------------
Borrower
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first hereinabove written.
"Lender"
UNION BANK, a
California corporation
By: /s/ XXXX X. XXXXXXX
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Xxxx X. Xxxxxxx,
Its: Sr. Vice President
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By: /s/ XXXXX XXXXXXX
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Xxxxx Xxxxxxx,
Its: Assistant Vice President
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"Borrower"
WESTERRA PACIFIC ASSOCIATES, a
California general partnership
By: /s/ XXXXXX X. XXXXXXX, XX.
----------------------------------
Xxxxxx X. Xxxxxxx, Xx.,
general partner
By: Romanow Family Partners, L.P.,
a California limited
partnership, general partner
By: /s/ XXXXXX X. XXXXXXX, XX.
------------------------------
Xxxxxx X. Xxxxxxx, Xx.,
general partner
Jaycor, a California corporation hereby assumes the obligations of Borrower
hereunder and agrees to be bound by the terms and conditions of this agreement.
Jaycor, a California corporation
BY:
------------------------------------------
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CONSENT OF JAYCOR
JAYCOR, a California corporation ("JAYCOR") hereby consents to that
certain Modification Agreement (the "Agreement") dated as of March 11, 1992, by
and between Union Bank, a California corporation, as Lender, and Westerra
Pacific Associates, a California general partnership ("Westerra Pacific"), as
Borrower, and hereby acknowledges and agrees that the lien of the Deed of Trust
(as defined in the Agreement), as modified by the Agreement, shall remain prior
and superior to that certain amended and restated lease dated June 16, 1990,
and the leasehold interest created thereby, by and between Westerra Pacific, as
landlord, and JAYCOR, as tenant.
Dated as of March 11, 1992. JAYCOR, a
California corporation
By:
------------------------------------
Its:
--------------------------------
CONSENT AND REAFFIRMATION OF GUARANTOR
Xxxxxx X. Xxxxxxx, Xx., hereby ratifies and reaffirms all his
obligations, representations and warranties, as guarantor, under that certain
Continuing Guaranty dated September 1, 1989, in favor of Union Bank, a
California corporation, and, as guarantor, under said guaranty, hereby consents
to that certain Modification Agreement dated as of March 11, 1992, by and
between Union Bank, a California corporation, as Lender, and Westerra Pacific
Associates, a California general partnership, as Borrower, and hereby expressly
acknowledges and agrees that, as of the Closing Date (as defined in said
Modification Agreement), he has no offsets, claims or defenses whatsoever
against any of his obligations under said guaranty.
Dated as of March 11, 1992.
/s/ XXXXXX X. XXXXXXX, XX.
--------------------------------
XXXXXX X. XXXXXXX, XX.
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