HomeMy WebLinkAboutA5937 - SPANISH INN LOAN AGR 'RECEIVED
RECORDING REQUESTED BY:
2011 ,5E P L AM 8 17
WHEN RECORDED MAIL TO: Jt HES THOrIPS Sri
American Default Management" CITY CLERK
433 N.Camden Drive,4th Floor
Beverly Hills, California 90210
(310) 855-0826' � 2,
Space above this line for recorders use
T.S.NO.: 2011-2292 Loan Number: 70532343
NOTICE OF UNIFIED TRUSTEE`S SALE
YOU ARE IN DEFAULT UNDER A DEED OF TRUST DATED 4/18/2008 AND SECURITY
AGREEMENT DATED 4118/2008_ UNLESS YOU TAKE ACTION TO PROTECT YOUR
PROPERTY,IT MAY BE SOLD AT A PUBLIC SALE. IF YOU NEED AN EXPLANATION
OF THE NATURE OF THE PROCEEDINGS AGAINST YOU,YOU SHOULD CONTACT A
LAWYER.
On 9/22/2011, 9:00 AM,American Default Management, as duly appointed Trustee
under and pursuant to Deed of Trust recorded on 4/25/2008, as Document No. 2009-0213390,
Book N/A ,Page N/A,of Official Records in the Office of the Recorder of Riverside, California,
executed by SPANISH INN,INC.,as Trustor,NARA BANK,as Beneficiary.
WILL SELL AT PUBLIC AUCTION TO THE HIGHEST BIDDER FOR CASH
(payable at time of sale in lawful money of the United States,by Cash,a'Cashier's check drawn
by a state or national bank, a check drawn by a state or federal credit union, or a check drawn by
a state or federal savings and loan association,savings association,or savings bank specified in
section 5102 of the Financial Code and authorized to do business in this state) At: At the front
steps to the entrance of the former Corona Police Department 849 W. Sixth Street Corona, CA,
all right, title and interest conveyed to and now held by it under said Deed of Trust in the
property situated in said County,California,describing the land therein:As more fully described
on said Deed of Trust.
A.RN.: 507-183-007-7 ;
The property heretofore described is being sold "as is". The street address and other
common designation, if any,of the real property described above is purported to be:
640 North Indian Canyon Drive
Palm Springs,CA 92262
The undersigned Trustee disclaims any liability for any incorrectness of the street address
and other common designation, if any,shown herein, Said sate will be made,but without
covenant or warrant,expressed or implied,regarding title,possession or encumbrances,to pay
the remaining principal sum of the note(s) secured by said Deed of trust, with interest thereon,as
provided in said note(s), advances, if any,under the terms of the Deed of trust,estimated fees,
charges and expenses of the Trustee and of the trust created by said Deed of Trust, to-wit:
$6177,596.17-estimated. Accrued interest and additional advances,if any, will increase the
figure prior to rsale.
Beneficiary hereby elects to conduct a unified foreclosure sale pursuant to the provisions
of California Commercial Code section 9604,et seq., and to include in the non judicial
foreclosure of the real property interest described in the Security Agreement dated 4/18/2008,
between the original trustor and the original beneficiary, as it may have been amended from time
to time, and pursuant to any other instruments between the trustor and beneficiary referencing a
security interest in personal property. Beneficiary reserves its right to evoke its election as to
some or all of said personal property and/or fixtures,or to add additional personal property
and/or fixtures to the election herein expressed,as Beneficiary's sole election, from time to time
and at any time until the consummation of the Trustee's Sale to be conducted pursuant to the
Deed of Trust and this Notice of Trustee's Sale. See the Deed of Trust,if applicable. The
personal property which was given as security for trustor s obligation is described All inventory,
equipment, accounts (including but not limited to all health-care-insurance, receivables), chattel
paper, instruments (including but not limited to all promissory notes)letter-of-credit rights,
letters of credit, documents,deposit accounts, investment property, money,other rights;to
payment and performance, room receipts generated from the subject property,and general
intangibles (including but not limited to all software and all payment intangibles); all oil, gas and
other minerals before extraction,all oil,gas, other minerals and accounts continuing as;-
extracted collateral;all fixtures; all timber to be out; all attachments, accessions, accessories,
fittings, increases, tools, parts,repairs, supplies,and comingied goods relating to the foregoing
property, and all additions,replacements of and substitutions for all or any part of the foregoing
property; all;insurance refunds relating to the foregoing property; all good will relating to the
foregoing property, all records and data and embedded software relating to the foregoing
property, and all equipment,inventory and software to utilized, create, maintain and process any
such records and data on electronic media;and all supporting obligations relating to the
foregoing property; all whether now existing or hereafter arising, whether now owned or
hereafter acquired or whether now or hereafter subject to any rights in the foregoing property,
and all products and proceeds(including but not limited to all insurance payments)of or relating
to the foregoing property. Riverside County. No warranty is made that any or all of the personal
property still exists or is available for the successful bidder and no warranty is made as to the -
condition of any of the'personal property, which shall be sold "as is where is".
The beneficiary under the Deed of Trust heretofore executed and delivered to the
undersigned, a written Declaration of Default and Demand for Sale, and a Written Notice of
Default and Electionto Sell. The undersigned caused said Notice of Default and Election to Sell
to be recorded in the County here the real property is located and more than three months have
elapsed since such recordation.
8/29/2011
American Default Management
Marvell L.Carmc�uche,SR. Trustee Sales Officer
American Default Management'
433 N. Camden Drive,4th Floor'
Beverly Hills,California 90210
(310) 855-0826
RECORDING REQUESTED BY:
Stewart Title Insurance Company
AND WHEN RECORDED MAIL TO:
American Default Management
433 N.Camden Drive,4th Floor
Beverly Hills,California 90210
SPACE ABOVE THIS LINE FOR RECORDER'S USE
TS No.:2011-2292 Loan No.:70532343
SUBSTITUTION OF TRUSTEE
WHEREAS,SPANISH INN,INC.was the original Trustor,FIRST AMERICAN TITLE
INSURANCE COMPANY was the original Trustee,and NARA BANK was the original Beneficiary under that
certain Deed of Trust dated 4118/2008 and recorded on 4/25/2008 as Instrument No.2008-02133",in book N/A,
page NIA Modification Recorded 3/31/2010 as Instrument#2010-0145610 of Official Retards of Riverside
County,California,and
WHEREAS,the undersigned is the present Beneficiary under said Deed of Trust,and
WHEREAS,the undersigned desires to substitute a new Trustee under said Deed of Trust in place and
instead of said original Trustee,or Successor Trustee,thereunder, in the manner in said Deed of Trust provided,
NOW,THEREFORE,the undersigned hereby substitutes American Default Management,as Trustee
under said Deed of Trust.
Whenever the context hereof so requires,the masculine gender includes the feminine and/or neuter,and the
singular number includes the plural.
Dated:5/27/2011 Nara Bank
nd IF SVP.sml Manager
STATE OF
COUNTY Of L
On hilp, 3,,a-Wt before me, .5+� HEN Personally appeared,
A*
,i ,4' yAr- ^ who proved to me on the basis of satisfactory evidence to be the
personK whose nameWyiiiiiam subscribed to the within instrument and acknowledged to me tha tee hehhey executed the
same in it S terhhen a need capaeityf{&and that by t /their signaturejA on the instrument the Persa,",Or
entity upon behalf of which the person
,W acted,executed tTx instrument.
Icertify under PENALTY OF PERJURY under the laws ofthe State of California that the foregoing paragraph is true and
correct.
WITNESS my hand and official seal.
^ zz
7dotary Name (Seal) r Commission#n 1849M
Notary Public -California
z Los Angeles County
M Comm.omm EZesMa f4,2013+
RECORDING REQUESTED BY.
Fidelity National financial
AND WHEN RECORDED MAIL TO:
American Default Management
433 N.Camden Drive,4th Floor<
i Beverly Hills,California 90210
SPACE ABOVE THIS LINE FOR RECORDER'S USE
TS No.:2011-2292 Loan No.:70532343
SUBSTITUTION OF TRUSTEE
WHEREAS,SPANISH INN,INC was the original Truster,FIRST AMERICAN TITLE INSURANCE
COMPANY was the original Trustee,and NARA BANK was the original Beneficiary under that certain Deed of
Trust dated 4/1$72008 and recorded on 412512008 as Instrument No.2008.0213390,in book NIA,page N/A
Modification Recorded 313112010 as Instrument#2010-0145610 of Offtchd Records of Riverside County,
<. California,and
WHEREAS,the undersigned is the present Beneficiary under said Deed of Trust,and
WHEREAS,the undersigned desires to substitute a new Trustee undersaid Deed of Trust in place and
instead of said original Trustee,or Successor Trustee.thereunder,in the manner:in said Deed oTTrust provided.
NOW,THEREFORE,the undersigned hereby substitutes American Default-Management,as Trustee
under said Deed of Trust.
Whenever the context hereof so requires,the masculine gender includes the feminine and(or neuter,and the singular
number includes the plural.
Dated:06YZ011 Pact `L 39 LLC'
D k'Isra i, r4rottiorized eset4a6
STATE OF
COUNTY OF ,y
On 14u�ukli before me, (`t�1 CD1.k., fJtA YX E t1.1"ttJ- NOTARY PUBLIC Personally
appeared Ply c�+t 1L iG'ria'ti whoproved to me on the basis of satisfactory evidence
to be the;person(at}whose aame(s)+stare subscribed to the within imtrument had acknowledged to:mc that hetapakitayexecuted
the same in histlwd4 is w authorized capacity(4e).and that by hiwli rltNeiv signature(o)on the instrument the person(4).or the
entity upon behalf of which the person(64 acted,executed the instrument.
i certify tinder PENALTY OF PER1'URY under the taws of the:State of California that the foregoing paragraph is true and
correct.
WITNESS my hand and official seal.
na
COIIMMt3#On!19s0980
Notary Name (Seal)
fiii cou Ga in. IrMa ffiI
AFFIDAVIT OF MAILING
FOR SUBSTITUTION OF TRUSTEE BY CODE
TS No.: 2011-2292
Trustor: SPANISH INN,INC.
I,Marvell L.Carmouche,SR.Trustee Sales Officer, declare: That I am an officer, agent or employee of
American Default Management whose business address is.
433 N. Camden Drive,4th Floor
Beverly Hills,California'90210
1 am over the age of,eighteen years; On 8130/2011, by Certified and First Class mail; enclosed in a sealed
envelope with postage fully prepaid, I deposited in the United States Mail,a copy of the attached Substitution of
Trustee to the trustee of record under the Deed of Trust described in said Substitution, and;
A copy of the attached Substitution has been mailed prior to the recording thereof, in the manner provided in
Section 2924(b) of the Civil Code of the State of California to all persons to whom a'copy of the Notice of
Default would be required to be mailed by the provisions of said section.
I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is'true
and correct.'
Date; 8IM2011
arvell L. Carmouche, SR. Trustee Sales Officer
COPY of Document Recorded
at Riverside County Recorder
R E C W I V II. 0 2011-0236672 05/27/2011
P ( 's Sty .
RECORDING RFQUESTED BY: has not been compared with original.
ZUI I JUN 20 A;M 10: 3ti Original will be returned when process
WHEN RECORDED MAIL TO: i r,L�: -1 r.i,JI;r ,,_. • has been completed.
American Default Management CITY CLERK
433 N. Camden Drive, 4th Floor
Beverly Hills,California 90210 Fee: 21.00 DTT: 0.00 Total- 21.00
SPACE ABOVE THIS UNE FOR RECORDER'S USE
TS No.:2011-2292 Loan No.:70532343
NOTICE OF DEFAULT AND ELECTION TO SELL UNDER DEED OF TRUST
IMPORTANT NOTICE
IF YOUR PROPERTY IS IN FORECLOSURE BECAUSE YOU ARE BEHIND IN
YOUR PAYMENTS IT MAY BE SOLD WITHOUT ANY COURT ACTION,
and you may have the legal right to bring your account in good standing by paying all of your past due payments
plus permitted costs and expenses within the time permitted by law for reinstatement of your account, which is
normally five business days prior to the date set for the sale of your property. No sale date may be set until
approximately 90 days from the date this notice of default may be recorded(which date of recordation appears
on this notice).
This amount is$6,009,735.01 as of 512712011, and will increase until your account becomes current. While
your property is in foreclosure,you still must pay other obligations(such as insurance and taxes)•required by
your note and deed of trust or mortgage. If you Fail to make future payments on the loan,pay taxes on the
property, provide insurance on the property,or pay other obligations as required in the note and deed of trust or
mortgage,the beneficiary or mortgagee may insist that you do so in order to reinstate your account in good
_standing._In addition,the-beneficiary or mortgagee may require as a condition of reinstatement that you provide
reliable written evidence that you paid all senior liens, property taxes,and hazard insurance premiums.
Upon your written request,the beneficiary or mortgagee will give you a written itemization of the entire
amount you must pay. You may not have to pay the entire unpaid portion of your account, even though full
payment was demanded, but you must pay all amounts in default at the time payment is made. However,you
and your beneficiary or mortgagee may mutually agree in writing prior to the time,the notice of sale is posted
(which may not be earlier than three months after this notice of default is recorded)to, among other things.(1)
provide additional time in which to cure the default by transfer of the property or otherwise;or(2)establish a
schedule of payments in order to cure your default; or both (1)and(2).
Following the expiration of the time period referred to in the first paragraph of this notice, unless the obligation
being foreclosed upon or a separate written agreement between you and your creditor permits a longer period,
you have only the legal right to stop the sale of your property by paying the entire amount demanded by your
creditor.To find out the amount you must pay, or to arrange for payment to stop the foreclosure,or if your
property is in foreclosure for any other reason,contact:
Nara Bank
C/O American Default Management
433 N. Camden Drive,4th Floor
Beverly Hills,California 90210
Phone: (310) 855-0826
TS No.:2011-2292 Loan No.: 70532343
NOTICE OF DEFAULT AND ELECTION TO SELL UNDER DEED OF TRUST
If you have any questions,you should contact a lawyer or the governmental agency which may have
insured your loan. Notwithstanding the fact that your property is in foreclosure,you may offer your
property for sale provided the sale is concluded prior to the conclusion of the foreclosure.
Remember, YOU MAY LOSE LEGAL RIGHTS IF YOU DO NOT TAKE PROMPT
ACTION.
NOTICE IS l-iEREBY GIVEN: That American Default Management is either the original trustee,the duly
appointed substituted trustee,or acting as agent for the trustee or beneficiary under a Deed of Trust dated
4/18/2008,executed by SPANISH IIVN,INC.,as Trustor,to secure certain obligations in favor of NARA
BANK, as beneficiary,recorded 4/25/2008,as Instrument No.2008-0213390, in Book N/A,Page N/A,
Modification Recorded 3/31/2010 as Instrument##2010-0145610 of Official Records in the Office of the
Recorder of Riverside County,California describing land therein as:As more fully described on said Deed of
Trust.
Including one NOTE(S)FOR THE ORIGINAL sum of$6,000,000.00,that the beneficial interest under such
Deed of Trust and the obligations secured thereby are presently held by the undersigned;that a breach a� and
default in, the obligations for which such Deed of Trust is security has occurred in that payment has not been
made of-
Failure to pay the balance of principal and interest which became due on 5/15/2011 and all
subsequent installments,together with all late charges,real estate taxes and insurance, foreclosure fees
and costs, any legal fees or advances that may become due.Failure to pay interest which became due on
4/21/2011 and all sums secured pursuant to the terms of the Note and Deed of Trust,for which interest
will continue to accrue on all sums secured.Under the Change in Terms Agreement dated 4/19/2011
executed in connection with the loan described in said deed of trust.The section of the agreement entitled
the loan condition specifically provided as follows.That the borrower provide Nara Bank with
"Certificate of Occupancy" Plus the failure to pay Attorney's fees which may be incurred by the
Beneficiary to protect the Security of the obligation and which will continue to be incurred. The
beneficiary may elect,in its discretion,to exercise its rights and remedies in any manner permitted under
section 9501 (4)(A)II of the California Commercial Code,or any other applicable section,as to all or some
of the personal property, fixtures and other general tangibles and intangibles more particularly described
in the Deed of Trust.
That by reason thereof, the present beneficiary under such deed of trust,has executed and delivered to said
duly appointed Trustee,a written Declaration of Default and Demand for same, and has deposited with said duly
appointed Trustee, such deed oftrust and all documents evidencing obligations secured thereby,and has declared
and does hereby declare all sums secured thereby immediately due and payable and has elected and does hereby
elect to cause the trust property to be sold to satisfy the obligations secured thereby.
Dated: 5/27/2011
American Default Management,as Agent for the Beneficiary
BY: J�ttr►ir�-r �I fG,,''r,-.
Ste"art'J7tle of California,Inc.Authorized 'Signatory
Through SPL EXPRESS, Inc. as authorized agent for Stewart Title
FIRST AMENDMENT TO LOAN AGREEMENT
(CITY OF PALM SPRINGS and SPANISH INN, INC.)
This First Amendment ("Amendment"), dated t7A- l L)Xeq 9 , 2011, is
entered into by and between the City of Palm Springs, a California charter city ("City"), and
Spanish Inn, Inc., a California corporation ("Spanish Inn).
RECITALS
A. On January 20, 2010, the City and Spanish Inn entered into a loan agreement
("Agreement") for Five Hundred Thousand Dollars ($500,000.00) related to the completion of a
hotel renovation and construction project located at 640 North Indian Canyon, Palm Springs, CA
("Project"). A copy of the Agreement is attached as Exhibit "A" and incorporated herein by
reference.
B. Section 2.1(1) of the Agreement requires that Spanish Inn complete all work and
improvements and obtain a certificate of occupancy related to the Project on or before February
9, 2011. Section 2.1(i)'further prohibits any extension of this deadline.
C. Section 8.11 of the Agreement requires that any amendment to the Agreement
must be in writing and signed by both Spanish Inn and the City.
D. City and Spanish Inn now desire to amend the Agreement to allow a three (3)
month extension for Spanish Inn to obtain a certificate of occupancy and complete all work and
improvements related to the Project.
AMENDMENT
l. Amendment. Section 2.1(i) of the Agreement is amended to read as follows.
"Certificate Occ _upany; Deadline. All work and improvements must be fully
_ erti icate o
completed and a certificate of occupancy for the entire Project must be completed on or before
May 9, 2011. THERE WILL BE NO EXTENSIONS TO THIS DEADLINE AND
REQUIREMENT NOR SHALL THERE BE ANY PRORATIONS OR ALLOWANCES OF
ANY KIND IN THE EVENT THIS DEADLINE AND REQUIREMENT ARE NOT FULLY
SATISFIED AND COMPLETED. THIS AGREEMENT AND SPANISH INN'S
OBLIGATIONS HEREUNDER SHALL NOT BE EXTENDED OR SUBJECT IN ANY WAY
TO ANY EVENT OF FORCE MAJEURE, INCLUDING WITHOUT LIMITATION ANY
ACTS OF GOD."
746553.1
2. All Other Provisions Shall Remain The Same. Except as expressly modified herein, all
terms and conditions of the Agreement shall remain the same and shall apply in full force and
effect.
3. Authority to Enter Into Amendment. Each party to this Amendment warrants and
represents that the person signing on behalf of their respective party possesses the full legal
authority to bind his or her respective party to the terms of this Amendment.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by
their respective duly authorized representatives on the date first set forth above.
CITY: SPANISH INN:
City of Palm Springs, a California Charter City Spanish Inn, Inc., a California Corporation
By- By:
DAVID READY
CITY MANAGER Name:
APPROVED BY CITY COUNCIL Title:
o � 1q Zr>> 1 �• ,J.•
A sq-57
ATTEST:
By:
;TY
S THOMPSON
CLERK Name:
Title:
APPRO ED AS TO FORM:
By:
DOUGLAS C. HOLL
IJ
CITY ATTORNEY
746553.1
P�c3�I
LOAN AGREEMENT
City of Palm Springs
Spanish Inn, Inc.
THIS LOAN AGREEMENT (this "Agreement') is entered into as of January
20, 2010, by and between the CITY OF PALM SPRINGS, a California charter city,
("City"), and SPANISH INN, INC., a California corporation ("Spanish Inn"), with
reference to the following:
RECITALS
A. On September 7, 2005, City Council of City approved a conditional use
permit and tentative tract map application of Spanish Inn ("Project") in conjunction
with the renovation and reconstruction of a hotel property located at 640 North
Indian Canyon, Palm Springs, CA.
B. As a condition of approval of the Project, Spanish Inn was required to
design and construct certain street improvements generally described as the "Movie
Colony Traffic Calming Program" ("Traffic Calming Improvements").
C. On December 19, 2007, the City Council approved a one year
extension of the Project, subject to a revised development schedule.
D. On or before February 13, 2008, Spanish Inn completed the installation
of the Traffic Calming Improvements-
E. On February 13, 2008, the City approved a final subdivision map for
the Project-
F. In November of 2009, Spanish Inn filed an application for leave to file a
late claim against the City for requiring Spanish Inn to pay for the full cost of the
installation of the Traffic Calming Improvements. City contends that the claim is not
valid or meritorious.
G. On December 14, 2009, Spanish Inn submitted a request to City for
financial assistance to ensure the completion of the Project.
H. City is willing to provide financial assistance to Spanish Inn on the
terms and conditions as provided in this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained in this Agreement, and other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
parties hereby agree as follows:
Page 1 of 18
"onunv I
ARTICLE I
LOAN
1.1 Amount. City hereby agrees to loan and Spanish Inn hereby agrees to
borrow and repay, Five Hundred Thousand Dollars ($500,000.00), subject to the
terms, covenants, conditions, representations, and warranties set forth in this
Agreement, and the other Loan Documents ("City Loan").
1.2 Loan Disbursement. Upon satisfaction of the conditions to
disbursement set forth in Section 2.1 below, the City will cause the disbursement of
the full amount of the City Loan proceeds to Spanish Inn within five business days of
issuance of the Certificate of Occupancy for the entire project.
1.3 Forgiveness of a Portion of Loan. Two Hundred and Fifty Thousand
Dollars ($250,000.00) of the Loan shall be deemed forgiven upon disbursement.
1 A Repayment of City Loan. The Promissory Note, in the amount of Two
Hundred and Fifty Thousand Dollars ($250,000.00), the disbursed and unpaid
principal balance of the City Loan, shall bear interest at the rate of 1.0% percent per
annum. Spanish Inn shall repay the City Loan per the following schedule:
(a) $50,000 on first anniversary of the disbursement of the City Loan
proceeds to Spanish Inn.
(b) $50,000 on the second anniversary of the disbursement of the City Loan
proceeds to Spanish Inn-
(c) $50,000 on the third anniversary of the disbursement of the City Loan
proceeds to Spanish Inn.
(d) $50,000 on the fourth anniversary of the disbursement of the City loan
proceeds to Spanish Inn.
(a) $50,000 on the fifth anniversary of the disbursement of the City loan
proceeds to Spanish Inn.
1.5 Maturity Date. Notwithstanding any other provision of this Agreement
or the Promissory Note, unless due sooner, the entire outstanding principal balance
of the City Loan shall be due and payable in full on the third anniversary of the City
Loan proceeds to Spanish Inn ("Maturity Date"). The Maturity Date may only be
extended by a mutual agreement of the parties in writing and fully executed.
1.6 Prepayment. Spanish Inn may pay the principal due the City under the
Promissory Note prior to or in advance of the time for payment thereof as provided in
the Promissory Note, without penalty.
1.7 Assumption. The Promissory Note shall not be assumable by
successors and assigns of Spanish Inn, either voluntarily or by operation of law,
without the prior written consent of the City, which may not be unreasonably
Page 2 of 18
,n,nxv i
withheld, and any such assignment or assumption without prior City written approval
shall be void.
1.8 Security for City Loan. The City Loan shall be secured by the Deed of
Trust, which Spanish Inn shall execute and which shall be recorded as a lien against
the Project along with the recording of a Request for Notice of Default. The parties
shall use a standard short form Deed of Trust with Assignment of Rents and
Request for Special Notice approved by the City Attorney.
1.9 Approval of Additional Financing. Spanish Inn shall not place or permit
(either voluntarily or involuntarily) to be placed any encumbrances not otherwise
provided for and approved by the City, including, but not limited to any additional
liens or financing of any kind on the Project without the prior written consent of the
City, which may not be unreasonably withheld_
1.10 Subordination of Deed of Trust. The City agrees that the Deed of Trust
shall be subordinate to the liens of record prior to the date of this Agreement. Any
other financing, refinancing, or encumbrance of the Project is prohibited without the
City's prior written consent, which may not be unreasonably withheld.
ARTICLE II
DISBURSEMENT OF CITY LOAN
2.1 Conditions Precedent to Disbursement of City Loan Proceeds. The
City shall cause City Loan proceeds to be disbursed as set forth in this Article II. No
disbursement shall be made until all of the following conditions precedent are
satisfied.
(a) Execution_ and Delivery of Documents. Spanish Inn shall have
executed and delivered to the City (i) this Agreement, the Promissory Note, and the
Deed of Trust, (ii) all resolutions and certificates necessary or appropriate in the
opinion of the City to evidence the Spanish Inn's authority to enter into the City Loan
and be bound by the Loan Documents, and (iii) all other documents and instruments
required by the City to be executed and delivered, all in form and substance
satisfactory to the City.
(b) Insurance, Spanish Inn shall have furnished the City with evidence of
the insurance coverage described under Section 5.10 hereof.
(c) Title to Property. Spanish Inn shall deliver to the City all documents,
title reports, and such other documentation as the City may request to determine to
the City's satisfaction that Spanish Inn has or will have good and marketable fee
title to the Property and there will exist thereon or with respect thereto no mortgage,
lien, pledge, easement, covenant, condition, restriction, or other encumbrance of any
ennnyv Page 3 of 18
character whatsoever other than liens for current real property taxes and
assessments not yet due and payable, the liens of the deeds of trust described in
Section 1.10 hereof, and any other matters approved in writing by the City.
(d) Recordation, The Parties shall concurrently record the Deed of Trust
against the Property and issue or cause the issuance to the City by a title insurance
company approved by the City, such endorsements to the existing title insurance
policy as the City may require, which shall insure the Deed of Trust as a lien upon
the Property subject only to the exceptions approved by the City in Section 2.1(c)
above.
(a) No Default. There shall exist no condition, event or act which would
constitute an Event of Default (as hereinafter defined) hereunder or which, upon the
giving of notice or the passage of time, or both, would constitute an Event of Default-
(f) Representations and Warranties. All representations, information, and
warranties of Spanish Inn herein contained and provided to the City including without
limitation the cost projections and financing requirements as generally described in
the Spanish Inn Business Plan Presentation dated December, 2009 are accurate,
complete, true and correct-
(g) Conditional Use Permit Amendment. Spanish Inn shall submit at
Spanish Inn's sole cost and expense a complete application for a conditional use
permit amendment to convert the 20 condominium units in the approved plan to no
more than 34 additional hotel units for a total of 59 hotel units in the Project. Nothing
in the application will prohibit or limit Spanish Inn's ability to apply for a conversion of
hotel units back to condominium units at a later date in the event the market
supports such conversion. Spanish Inn will fully cooperate with all persons and
entities reviewing this application, including without limitation the Directors of
Planning and Public Works, the Planning Commission, the Architectural Review
Board, and the City Council. The conditional use permit amendment is subject to the
public review and hearing process and nothing in this email shall be construed as
limiting the City's ability to review, approve, conditionally approve, or deny your
application. In the event the conditional use permit is (1) not approved for any
reason, or (2) conditionally approved in a manner Spanish Inn finds unacceptable,
this Agreement and all obligations hereunder will terminate and will not be
enforceable against either party.
(h) Plans and Specifications; Construction Contract. Spanish Inn will
submit to the City's City Manager and/or his designees for their review a complete
set of plans and specifications for the completion of the Project and an agreement
for the construction of all facets of such plans and specifications executed by you
and a licensed contractor and such supporting documentation as the City Manager
and/or his designees may request that demonstrates the existence of a binding
contractual relationship between Spanish Inn and a licensed contractor for the
n Page 4 of 18
completion of the Project within the time limits or deadlines provided in this
Agreement-
(i) Certificate of Occupancy: Deadline. All work and improvements must
be fully completed and a certificate of occupancy for the entire Project must be
completed on or before February 9, 2011, THERE WILL BE NO EXTENSIONS TO
THIS DEADLINE AND REQUIREMENT NOR SHALL THERE BE ANY
PRORATIONS OR ALLOWANCES OF ANY KIND IN THE EVENT THIS DEADLINE
AND REQUIREMENT ARE NOT FULLY SATISFIED AND COMPLETED. THIS
AGREEMENT AND SPANISH INN'S OBLIGATIONS HEREUNDER SHALL NOT BE
EXTENDED OR SUBJECT IN ANY WAY TO ANY EVENT OF FORCE MAJUERE,
INCLUDING WITHOUT LIMITATION ANY ACTS OF GOD.
a) Construction Releases. The City (if it so elects) shall have received
and approved copies of all labor and material releases pertaining to the construction
contract or contracts with a responsible contractor or contractors providing for the
construction of the Project in conformance with the terms of this Agreement. In lieu
of releases, Spanish Inn may substitute evidence acceptable to the City Attorney of
the City that there is sufficient security to fully satisfy any outstanding construction
lien on the property.
2.2 Procedure for Disbursement of City Loan Proceeds. When all the
conditions to disbursement have been satisfied and the City is satisfied that all
conditions and requirements have been satisfied, the City shall disburse the funds in
accordance with the terms of this Agreement..
ARTICLE III
DEVELOPMENT OF THE IMPROVEMENTS
The Project is being constructed in accordance with plans approved by the
City and City (and to the extent of any change from such plans, then in accordance
with the City approval of the proposed change) and the terms and conditions of the
permits and approvals (including building permits) for the Project.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SPANISH INN
4.1 Representations and Warranties. Spanish Inn hereby makes the
following representations and warranties to the City, each of which shall also be
deemed a covenant for which Spanish Inn agrees, shall continue to be true and
accurate in all material respects so long as the City Loan or any portion thereof
remains outstanding:
niausv i Page 5 of 18
(a) Organization. Spanish Inn is duly organized, validly existing and in
good standing under the laws of the State of California and has the power and
authority to own its property and carry on its business as now being conducted. The
copies of the documents evidencing the organization of Spanish Inn delivered to the
City are true and correct copies of the originals, as amended to the date of this
Agreement.
(b) Authority of Spanish Inn. Spanish Inn has full power and authority to
execute and deliver this Agreement and to make and accept the borrowings
contemplated hereunder, to execute and deliver the Loan Documents and all other
documents or instruments executed and delivered, or to be executed and delivered,
pursuant to this Agreement, and to perform and observe the terms and provisions of
all of the above-
(c) Authority of Persons Executing Documents. This Agreement and the
Loan Documents and all other documents or instruments executed and delivered, or
to be executed and delivered, pursuant to this Agreement have been executed and
delivered by persons who are duly authorized to execute and deliver the same for
and on behalf of Spanish Inn, and all actions required under Spanish Inn's
organizational documents and applicable governing law for the authorization,
execution, delivery and performance of this Agreement and the Loan Documents
and all other documents or instruments executed and delivered, or to be executed
and delivered, pursuant to this Agreement, have been duly taken-
(d) Valid Binding Agreements, This Agreement and the Loan Documents
and all other documents or instruments which have been executed and delivered
pursuant to or in connection with this Agreement constitute or, if not yet executed or
delivered, will when so executed and delivered constitute, legal, valid and binding
obligations of Spanish Inn enforceable against the Spanish Inn in accordance with
their respective terms.
(a) No Breach of Law or Agreement. Neither the execution nor delivery of
this Agreement or the other Loan Documents or of any other documents or
instruments executed and delivered, or to be executed or delivered, pursuant to this
Agreement, nor the performance of any provision, condition, covenant or other term
hereof or thereof, will conflict with or result in a breach of any statute, rule or
regulation, or any judgment, decree or order of any court, board, commission or City
whatsoever binding on Spanish Inn, or any provision of the organizational
documents of Spanish Inn or, if applicable, of its constituent partners, or will conflict
with or constitute a breach of or a default under any agreement to which Spanish
Inn, or, if applicable, its constituent partners, is a party, or will result in the creation or
imposition of any lien upon any assets or property of Spanish Inn, other than liens
established pursuant hereto.
(f) Pending Proceedings. Spanish Inn represents that it is not in default
under any law or regulation or under any order of any court, board, commission or
nr, nxn Page 6 of 18
City whatsoever, and there are no claims, actions, suits or proceedings pending or,
to the knowledge of Spanish Inn, threatened against or affecting Spanish Inn or the
Property or Project, at law or in equity, before or by any court, board, commission or
City whatsoever which might, if determined adversely to Spanish Inn, materially
affect Spanish Inn's ability to repay the City Loan or impair the security to be given to
the City pursuant hereto-
(g) Compliance_ with Laws: Consents and Approvals. The Project shall
comply at all times with all applicable laws, ordinances, rules and regulations of
federal, state, and local governments and agencies, including but not limited to all
applicable federal and state labor requirements, and with all applicable directions,
rules and regulations of the fire marshal, health officer, building inspector, and other
officers of any such government or City. All consents, permissions and licenses
required by any federal, state, or local government or City to which the Spanish Inn
or the Project is subject, which may be necessary in relation to this Agreement or the
ownership or operation of the Project, have been or will be obtained, and none of
such consents, permissions, and licenses is subject to appeal or to conditions which
have not been met.
(h) Financial Statements. The financial statements of the Spanish Inn and
its general partners and other financial data and information furnished by the
Spanish Inn for review by the City fairly present the information contained therein.As
of the date of City Loan disbursement, there will not have been any adverse material
change in the financial condition of the Spanish Inn from that shown by such
financial statements and other data and information-
(i) Adequacy of City Loan. The amount of the City Loan, together with
any funds to be provided by the Spanish Inn or to the Spanish Inn from any other
sources, is adequate to pay all costs incurred in connection with the Project and to
enable the Spanish Inn to satisfy the covenants contained in this Agreement.
0) Payment of Taxes. All federal, state, county, and municipal taxes
required to be paid by the Spanish Inn or on account of the Project have been paid
in full as of the date of this Agreement or will be paid in full prior to disbursement of
City Loan proceeds_
ARTICLE V
CONTINUING OBLIGATIONS
5.1 Applicability For the longer of the entire Term, or so long as the
Promissory Note remains outstanding, the Spanish Inn shall comply with the
provisions of this Article V.
5.2 Compliance with Loan Documents. Spanish Inn shall promptly comply
with all the terms and provisions of the Loan Documents.
bbbUS?I Page 7 of 18
5.3 Taxes and Assessments. So long as Spanish Inn owns the Project,
Spanish Inn shall pay all real and personal property taxes, assessments and
charges, and all franchise, income, unemployment, old age benefit, withholding,
sales, and other taxes assessed against it, or payable by it, at such times and in
such manner as to prevent any penalty from accruing, or any lien or charge from
attaching to the Project; provided, however, that Spanish Inn shall have the right to
contest in good faith any such taxes, assessments, or charges, in the event Spanish
Inn exercises its right to contest any tax, assessment, or charge against it, Spanish
Inn, on final determination of the proceeding or contest, shall immediately pay or
discharge any decision or judgment rendered against it, together with all costs,
charges, and interest.
5.4 Indemnity. Spanish Inn shall, at Spanish Inn's expense, defend,
indemnify, save and hold the City and its respective elected and appointed officials,
officers, agents, employees, and members harmless from any and all losses,
damages, liabilities, claims, causes of action, judgments, settlements, court costs,
attorneys' fees, and other legal expenses, cost of evidence of title, cost of evidence
of value, and other expenses which they may suffer or incur due to, arising from, or
relating to Spanish Inns performance or non-performance of its obligations under
this Agreement or the Loan Documents, or Spanish Inn's ownership or operation of
the Property or the Project.
5.5 Entry_ bV the CitV- Spanish Inn shall permit the City, through its
officers, agents, or employees, at all reasonable times to enter the Property or the
Project and inspect for conformity with the requirements hereof. Spanish Inn
acknowledges that the City is under no obligation to inspect. Any inspection by the
City is entirely for its purposes in determining whether Spanish Inn is in default under
this Agreement or the Loan Documents.
5.6 Hazardous Materials. Spanish Inn shall indemnify, defend and hold
harmless the City, and its respective elected and appointed officials, members,
directors, officers, employees, agents, successors and assigns from and against any
loss, damage, cost, expense or liability directly or indirectly arising out of or
attributable to the use, generation, storage, release, threatened release, discharge,
disposal, or presence of hazardous materials on, under, or about the Project,
including without limitation: (a) all foreseeable consequential damages; (b) the costs
of any required or necessary repair, cleanup or detoxification of the Project and the
preparation and implementation of any closure, remedial or other required plans;
and (c) all reasonable costs and expenses incurred by the City or City in connection
with clauses (a) and (b), including but not limited to reasonable attomeys' fees.
5.7 Transfers. During the Term, Spanish Inn shall not sell or otherwise
transfer the Project or any portion thereof to a Developer, speculator, or investor
without the prior written consent of the City, which may not be unreasonably
Page 8 of 18
uenana�
withheld. The City shall not approve any such transfer request if the Spanish Inn is in
default under the Agreement or the Loan Documents.
5.8 Maintenance of Protect- Spanish Inn agrees to maintain all interior and
exterior improvements, including landscaping, on the Project in first-class condition,
repair and sanitary condition, in compliance with all applicable laws, rules,
ordinances, orders, and regulations of all federal, state, City, municipal, and other
governmental agencies and bodies having or claiming jurisdiction and all their
respective departments, bureaus, and officials. Spanish Inn shall keep the Project
free from all graffiti and any accumulation of debris or waste,material. Spanish Inn
shall promptly make all repairs and replacements necessary to keep the Project in
first class condition and repair and shall promptly eliminate all graffiti and replace
dead and diseased plants and landscaping with comparable approved materials.
In the event that Spanish Inn breaches any of the covenants contained in this
Section 7.8 and such default continues for a period of five (5) days after written
notice from City (with respect to graffiti, debris, waste material, and general
maintenance) or thirty (30) days after written notice from City (with respect to
landscaping and building improvements), then City, in addition to whatever other
remedy it may have under this Agreement, at law or in equity, shall have the right to
enter upon the Project and perform or cause to be performed all such acts and work
necessary to cure the default. Pursuant to such right of entry, the City shall be
permitted (but not required) to enter upon the Project and perform all acts and work
necessary to protect, maintain and preserve the improvements and landscaped
areas on the Project, in the amount of the expenditure arising from such acts and
work of protection, maintenance, and preservation by City and/or costs of such cure,
including a fifteen percent (15%) administrative charge, which amount shall be
promptly paid by Spanish Inn to City upon demand.
5.9 Status of Spanish Inn, Spanish Inn shall at all times maintain its legal
status in goad standing and comply with all laws, rules and regulations of California
and the United States and of any political subdivision thereof applicable to it or its
business-
5.10 Insurance. While any obligation of Spanish Inn under any Loan
Document remains outstanding, Spanish Inn shall maintain at Spanish Inn's sole
expense, with insurers of recognized responsibility, the following policies of
insurance in form and substance satisfactory to the City, Insurers shall be admitted
and in good standing in the State of California and shall be rated at least A Vill-
(a) Workers' compensation insurance and any other insurance required by
law in connection with the Project-,
(b) Fire and hazard "all risk" insurance covering one hundred percent
(100%) of the replacement cost of the Project in the event of fire, lightning,
windstorm, vandalism, malicious mischief and all other risks normally covered by "all
Page 9 of 18
bbn041
risk" coverage policies in the locality where the Project is situated (including
insurance against loss by flood if the Project is located in an area now or hereafter
designated as subject to the danger of flood, but excluding insurance against loss by
earthquake), subject to reasonable deductibles as approved by the City Attorney of
the City;
(c) Rent loss insurance for a period of repair or restoration for a period of
at least one year;
(d) Umbrella coverage in an amount not less than $2,000,000; and
(e) All such insurance shall be endorsed to provide that said insurance
may not be canceled or materially modified without 30 days' prior written notice to
the City. The policies required pursuant to subparagraphs (b) and (c), above, shall
include a "lender's loss payable endorsement" (Form 438BFU) in form and
substance satisfactory to the City assuring City that all proceeds shall be paid to City
as provided in the Deed of Trust subject to the interests of the senior lenders on the
Project. The City shall be an additional named insured as to the policies required
pursuant to subparagraph (b), (c), and (d), above. No such insurance shall include
deductible amounts to which the City has not previously consented in writing.
Certificates of insurance for all of the above policies (and/or original policies, if
required by the City from time to time), showing the same to be in full force and
effect, shall be delivered to the City. All policies insuring against damage to the
Project shall contain an agreed value clause sufficient to eliminate any risk of
coinsurance.
ARTICLE VI
SPANISH INN'S RELEASE
6.1 Release. In consideration of this Agreement and the City's promise to
provide Spanish Inn with a loan under the terms of this Agreement, Spanish Inn
hereby fully and forever completely releases, acquits, and discharges the City from
any and all claims, costs, demands, damages, attorneys' fees, and rights which apse
from, or are directly or indirectly related to, or are connected with, or caused by, any
event or action of the City related to the Spanish Inn, the development of the
Spanish Inn, and any condition of approval that occurred on or prior to the date of
this Agreement,
6.2 Hold Harmless.
(a) Spanish Inn specifically agrees to hold City harmless, and to indemnify
City for and against any lien, any lienholder, its agents, officers, directors,
shareholders, attorneys, servants, representatives, employees, subsidiaries,
partners, predecessors, successors in interest, assignees, firms, or corporations
which have arisen or may arise from, or are directly or indirectly related to, or are
Page 10 of 18
G4G0$'1
connected with, or caused by, any event or action of the City related to the Spanish
Inn, the development of the Spanish Inn, and any condition of approval that occurred
on or prior to the date of this Agreement, including without limitation any actions or
approvals of the City relating to the Traffic Calming Improvements.
(b) Spanish Inn agrees to hold City harmless and to indemnify City for and
against any claim made by Spanish Inn, its agents, attorneys, servants, employees,
representatives, and successors in interest against City which may have arisen or
may arise from, or are directly or indirectly related to, or are connected with, or
caused by, any event or action of the City related to the Spanish Inn, the
development of the Spanish Inn, and any condition of approval that occurred on or
prior to the date of this Agreement, including without limitation any actions or
approvals of the City relating to the Traffic Calming improvements.
6.3 Waiver of Section 1542. There is a risk that, after the execution of
this Agreement, Spanish Inn will manifest new damage, the scope, location, and
character of which is unknown and/or not discovered at the time this Agreement is
signed. There is a risk that the damage of which Spanish Inn and its attorney
presently are aware may become more serious or otherwise increase in magnitude
(qualitatively and/or quantitatively). Spanish Inn shall, and hereby does, assume the
above-mentioned risks. This release is expressly intended to cover and include all
future damages, defects, and discoveries, including all rights and causes of action
arising against the City therefrom. Spanish Inn is aware of the provisions of
California Civil Code section 1542, which provide:
A general release does not extend to claims which the creditor does not know
or suspect to exist in his or her favor at the time of executing the release, which if
known by him or her must have materially affected his or her settlement with the
debtor.
Spanish Inn hereby expressly waives the provisions of said Section 1542 as
to all matters within the scope of the claims released hereby. Spanish Inn hereby
warrants and guarantees that it has full and complete authority to release all such
claims on behalf of itself and its assigns and successors in interest.
6.4 Actions for Contribution. Nothing in this Agreement shall preclude
Spanish Inn from pursuing any legal remedy it may have against a third party for
contribution towards costs the Traffic Calming Improvements, except that the
obligations of Spanish Inn to the City shall be fully applicable to any such actions
including any defense or cross-claim of complaint that may be filed against the City
as a result thereof.
6.5 City Programs. Nothing in this Agreement shall be interpreted or
construed as limiting Spanish Inn's ability to apply for any City program, including
any hotel program for hotels, for which it is otherwise qualified.
Page 11 of 18
b660yn�
ARTICLE VII
DEFAULT AND REMEDIES
7.1 Events of Default. Each of the following shall constitute an "Event of
Default" by Spanish Inn under this Agreement:
(a) Failure to Make Note Payments. Failure to make prompt payments
under the Promissory Note as and when provided for in the Promissory Note and
this Agreement.
(b) Mismanagement. Failure by Spanish Inn to manage the Project in a
prudent, first class manner in accordance with the terms, covenants, conditions,
representations and warranties of this Agreement or other Loan Documents. For
purposes of this Agreement, an act or omission constituting "mismanagement" by
the Spanish Inn shall include, but not be limited to each of the following:
(1) Failure to maintain and repair the Project and make
replacements thereto, or the committing or permitting of any waste or deterioration of
the Project;
(2) Breach or failure by Spanish Inn to duly perform, comply with or
observe any of the terms, covenants, or conditions of this Agreement or any other
Loan Document, and such failure continues uncured or without Spanish Inn
commencing to diligently cure for thirty (30) days after notice thereof in writing is
mailed by the City to Spanish Inn;
(3) A sale or other transfer of the Project in violation of Section 7.7
above.
(c) Fraud or Material Misstatement or Omissions. Any fraudulent act or
omission of Spanish Inn's, or misrepresentation of Spanish Inn's, pertaining to or
made in connection with the City Loan, the Loan Documents or the Project.
(d) Insolvency. A court having jurisdiction shall have made or entered
any decree or order (i) adjudging Spanish Inn to be bankrupt or insolvent, (ii)
approving as properly filed a petition seeking reorganization of Spanish Inn or
seeking any arrangement for Spanish Inn under the bankruptcy law or any other
applicable debtor's relief law or statute of the United States or any state or ether
jurisdiction, (iii) appointing a receiver, trustee, liquidator, or assignee of Spanish Inn
in bankruptcy or insolvency or for any of their properties, or (iv) directing the winding
up or liquidation of Spanish Inn, if any such decree or order described in clauses (i)
to (iv), inclusive, shall have continued unstayed or undischarged for a period of sixty
(60) days unless a lesser time period is permitted for cure under any other mortgage
Page 12 of 18
eeeus• I
on the Property, in which event such lesser time period will apply under this
subsection 8.1(d) as well; or Spanish Inn shall have admitted in writing its inability to
pay its debts as they fall due or shall have voluntarily submitted to or filed a petition
seeking any decree or order of the nature described in clauses (i) to (iv), inclusive.
The occurrence of any of the events of default in this paragraph shall act to
accelerate automatically, without the need for any action by the City, the
indebtedness evidenced by the Promissory Note-
(e) Pro e�ct Monies. Misapplication or embezzlement of Project monies.
7.2 Remedies. The occurrence of any Event of Default shall relieve the
City of any obligation to make or continue the City Loan and shall give the City the
right to proceed with any and all remedies set forth in this Agreement and the Loan
Documents or otherwise available at law or in equity or by statute (and all of the
City's rights and remedies shall be cumulative), including but not limited to the
following:
(a) Acceleration of Note. The City shall have the right to cause all
indebtedness of the Spanish Inn to the City under this Agreement and the
Promissory Note, to become immediately due and payable. The Spanish Inn waives
all right to presentment, demand, protest or notice of protest, or dishonor. The City
may proceed to enforce payment of the indebtedness and to exercise any or all
rights afforded to the City as a creditor and secured party under the law including the
Uniform Commercial Code, including foreclosure under the Deed of Trust. The
Spanish Inn shall be liable to pay the City on demand all expenses, costs and fees
(including, without limitation, attorneys' fees and expenses) paid or incurred by the
City in connection with the collection of the City Loan and the preservation,
maintenance, protection, sale, or other disposition of the security given for the City
Loan.
(b) Specific Performance. The City shall have the right to mandamus or
other suit, action or proceeding at law or in equity to require Spanish Inn to perform
its obligations and covenants under the Loan Documents or to enjoin acts on things
which may be unlawful or in violation of the provisions of the Loan Documents-
(c) Right to Cure at Spanish Inn's Expense. The City shall have the right
to cure any monetary default by Spanish Inn under a loan other than the City Loan.
The Spanish Inn agrees to reimburse the City for any funds advanced by the City to
cure a monetary default by Spanish Inn upon demand therefore, together with
interest thereon at the rate of twelve percent (12%) per annum or the maximum rate
permitted by law, whichever rate is greater, from the date of expenditure until the
date of reimbursement.
7.3 Remedies Cumulative. No right, power, or remedy given to the City by
the terms of this Agreement or the Loan Documents is intended to be exclusive of
any other right, power, or remedy; and each and every such right, power, or remedy
15 Page 13 Of 18
shall be cumulative and in addition to every other right, power, or remedy given to
the City by the terms of any such instrument, or by any statute or otherwise against
Spanish Inn and any other person. Neither the failure nor any delay on the part of
the City to exercise any such rights and remedies shall operate as a waiver thereof,
nor shall any single or partial exercise by the City of any such right or remedy
preclude any other or further exercise of such right or remedy, or any other right or
remedy.
7A Waiver of Terms and Conditions. No waiver of any default or breach
by Spanish Inn hereunder shall be implied from any omission by the City to take
action on account of such default if such default persists or is repeated, and no
express waiver shall affect any default other than the default specified in the waiver,
and such waiver shall be operative only for the time and to the extent therein stated.
Waivers of any covenant, term, or condition contained herein shall not be construed
as a waiver of any subsequent breach of the same covenant, term, or condition. The
consent or approval by the City to or of any act by Spanish Inn requiring further
consent or approval shall not be deemed to waive or render unnecessary the
consent or approval to or of any subsequent similar act. The exercise of any right,
power, or remedy shall in no event constitute a cure or a waiver of any default under
this Agreement or the Loan Documents, nor shall it invalidate any act done pursuant
to notice of default, or prejudice the City in the exercise of any right, power, or
remedy hereunder or under the Loan Documents unless in the exercise of any such
right, power, or remedy all obligations of Spanish Inn to City are paid and discharged
in full.
ARTICLE VIII
MISCELLANEOUS
8.1 Approvals Under Agreement. Where this Agreement requires an
approval or consent of the City, such approval or consent may be given on behalf of
the City by the Executive Director or his or her designee.
8.2 Time. Time is of the essence in this Agreement.
8.3 Notices. Any notice requirement set forth herein shall be deemed to
be satisfied three (3) days after mailing of the notice first-class United States
certified mail, postage prepaid, addressed to the appropriate party as follows.
If to Developer: Spanish Inn, Inc-
Attn: Nejat Kohan, General Manager
P.O. Box 2804
Palm Springs, CA 92263
Page 14 of 18
nbnOyV
If to City: City of Palm Springs
C/o City Manager
3200 E. Tahquitz Canyon Way
P.O. Box 2743
Palm Springs, CA 92263-2743
Such addresses may be changed by notice to the other party given in the same
manner as provided above.
8.4 No Third Parties Benefited. This Agreement is made and entered into
for the sole protection and benefit of the City, its successors and assigns, and
Spanish Inn, its permitted successors and assigns, including any secured lender
holding a senior position to the City, and no other person or persons shall have any
right of action hereon.
8.5 Citv_to_File Notices. Spanish Inn irrevocably appoints, designates, and
authorizes the City as its agent (said City being coupled with an interest) to file for
record any notices of completion, cessation of labor, or any other notice that the City
deems necessary or desirable to protect its interest hereunder and under the Loan
Documents
8.6 Actions. The City shall have the right to commence, appear in, or
defend any action or proceeding purporting to affect the rights, duties, or liabilities of
the parties hereunder, or the disbursement of any proceeds of the City Loan.
8.7 Successors and Assigns. The terms hereof shall be binding upon and
inure to the benefit of the successors and assigns of the parties hereto; provided,
however, that no assignment of Spanish Inn's rights hereunder shall be made,
voluntarily or by operation of law, without the prior written consent of the City, and
that any such assignment without said consent shall be void.
8.8 Construction of Words. Except where the context otherwise requires,
words imparting the singular number shall include the plural number and vice versa,
words imparting persons shall include firms, associations, partnerships and
corporations, and words of either gender shall include the other gender.
8.9 Partial Invalidity.. If any provision of this Agreement shall be declared
invalid, illegal, or unenforceable, the validity, legality, and enforceability of the
remaining provisions hereof shall not in any way be affected or impaired.
8.10 Governing Law and Venue. This Agreement and the Loan Documents
and other instruments given pursuant hereto shall be construed in accordance with
and be governed by the laws of the State of California. In the event of any legal
action to enforce or interpret this Agreement or any of the Loan Documents, the sole
and exclusive venue shall be a court of competent jurisdiction located in Riverside
Page 15 of 18
nnnnxa i
County, California, and the parties hereto agree to and do hereby submit to the
jurisdiction of such court.
8.11 Amendment. This Agreement may not be changed orally, but only by
an agreement in writing signed by Spanish Inn and the City.
8.12 Entire Agreement. This Agreement and the other Loan Documents
constitute the entire agreement of the parties with respect to the subject matter
hereof.
8.13. Approvals. Where an approval or submission is required under this
Agreement, such approval or submission shall be valid for purposes of this
Agreement only if made in writing.
8.14 Captions and Headings. Captions and headings in this Agreement are
for convenience of reference only, and are not to be considered in construing the
Agreement.
8.15 Counterparts: Facsimile Signatures. This Agreement may be executed
in counterparts, each of which shall be deemed an original, but all of which, taken
together, shall constitute one and the same instrument and any executed
counterpart may be delivered by facsimile transmission with the same effect as if an
originally executed counterpart had been delivered.
[SIGNATURE PAGE FOLLOWS]
Page 16 of 16
oo,ua,i
IN WITNESS WHEREOF, City and Spanish Inn have signed this Agreement
as of the date first set forth above-
CITY: ATTEST-
City of Palm Springs,
a California Charter City
MES THOMPSON
��� City Clerk
DAVID READY
City Manager
APPROU , AS TO FORM:
APPROVED BY CITY COUNCIL
DOUGLA C. HOLLAND
A.Sg31 City Attorney
SPANISH INN:
Spanish Inn, Inc.,
a California corporation
By:
Name:-_/� ��1,� r61V7 I
Title: rs1`
a
o• �� C �z
Name. r_ �
Title: l
Page 17 of 18
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of Riverside SS
On PAVT-A ")V/G before me, Lynn K. Reich, Notary Public
Date [ Insert Name and Title of[hc OfiiLer
personally appeared C f C,-,}. E o �1.1q yl 4- /4ir wvC)-Z- 12gtA
Name(s)of Signer(s)
who proved to me on the basis of satisfactory evidence to
be the person(s)whose name(s) is/apl subscribed to the
within instrument and acknowledged to me that 1 the
executed the same in hisfhir the_ uthorizud capacity re- ;
and that by lus h rsignature4 sgon the instrument the
person Q,or the entity upon behalf of which the person fsL
acted, executed the instrument.
bYNN K. REICH I =1ify under PENALTY OF PERJURY under the laws of
emy
Commission# 1697618 z the Siaic ofCalifornia that the foregoingparagraph is true
zN01dfy public COIIforNe sand C017eC[.
Riverside County Comm Expires Nov 2, 2010
WITNESS my hand and official seal.
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Platy Notary Scal Above Signature of Notary Public
OPTIONAL
Though the information below is not required by inw n may prove valuable in persons relying on the document
and could prevent hgtduienr removal and reattachment of[hen form to another document
Description of Attached Document
Title or Type of Documenr.
Document Date �-y, �U Number of Pagcs
Signer(5)Other Than Named Above
Capacit (ius)Claimed by Signer(s)
_Signer'sN, e' ner'sName:
Individual In vidual
Corporate Offic Title(s): Corpo e Officer—Title(s)•
Partner-- ❑ Limit General Partner-� ❑ Limited General
Attomey in Fact - Attorney in Fact\
Tvuslee Trustee
Guardian or Conservator Top of thumb here Guardian or Conservatory Tnp orlhum6 here
`� Other-
Signer _
Signer is Representing: Signer is Representin;: `