City of Culver City, California
Redevelopment Agency Agenda Item Report
RECOMMENDATION:
Staff recommends the Culver City Redevelopment Agency (the “Agency”) approve a
Participation Agreement for Sporteve a retail store located at 3849 Main Street.
BACKGROUND:
The Downtown Overlay Zone was adopted to encourage the pedestrian-oriented
uses in the Downtown area at the street level/ground floor. Over the last two years
the Redevelopment Agency has been recruiting tenants that engage the public as
they stroll through Downtown. The Agency has been successful in attracting
several restaurants. Now the primary focus for Downtown is to create a broad
variety of retail establishments.
The ground floor of the building located at 3849 Main Street at Culver Boulevard
commonly referred to as the “Imperial Building” has been vacant for the past several
years. The successful tenanting of this key intersection has been an important part
of revitalizing the Downtown.
DISCUSSION:
Staff has been working with D’lynda Fischer, the principle of Sporteve, since the
summer of 2005 to find a commercial space in the Downtown area. After several
months of searching and negotiation Ms. Fischer signed a ten year lease for 3849
Main Street. Ms. Fischer then requested a loan for tenant improvements.
Meeting Date: 9/18/06 Item Number: A-2
AGENDA ITEM:
Approval of a Participation Agreement with Sporteve for a Retail Store at 3849
Culver Boulevard
Contact Person/Dept.: Christopher
Evans/Kellee Fritzal
Phone Number: (310) 253-5744/ (310)
253-5765
Fiscal Impact: Yes [X] No [] General Fund: Yes [] No [X]
Public Hearing: [] Action Item: [X] Attachments: [X]
Public Notification: D’lynda Fischer, Daniel Rafalian, Master Notification List (09/06/06)
Department Approval:
Susan Evans (09/06/06)
Exec. Director Approval:
Jerry Fulwood (09/13/06)
City Controller Approval:
Marlee Chang (09/13/06)City of Culver City, California
Redevelopment Agency Agenda Item Report
Sporteve is a specialty retailer, providing apparel, footwear, and gear for active
women but, also providing some general merchandise such as personnel GPS
(Global Positioning System) devices and local walking and biking guides. This
business provides a high quality retailer at a high visibility intersection.
After review of the Economic Development Questionnaire and review of the financial
statements, staff is proposing a loan. The deal points of the proposed loan are as
follows:
Provide an Owner Participation Loan for $200,000 with an interest of six percent
(6%), with no payment or accrual of interest for one year after loan dispersal.
Interest will begin accruing after year one.
Loan payment will begin when Sporteve, Inc. shows sales of $1,000,000 in a
single year or no later than five years from the dispersal of the loan.
The note would be secured through real property.
The loan will be repaid in ten years once payment begins.
Should the business cease to operate at 3849 Main Street then payment for the
balance of the loan can be called at the discretion of the Agency.
Sporteve, Inc will sponsor one community outreach event per year for the life of
the loan.
Construction has been completed on the property and the business has opened.
This loan will reimburse Ms. Fischer for tenant improvement costs. The economic
benefits of this store will help to further activate the general area and attract other
retail tenants.
FISCAL ANALYSIS:
The $200,000 will be funded through unappropriated Agency funds. The loan
payback will depend upon the time at which principle payback begins.
ATTACHMENTS:
1. Participation AgreementCity of Culver City, California
Redevelopment Agency Agenda Item Report
MOTION:
That the Redevelopment Agency:
1) Approve the Participation Agreement with D’lynda Fischer, Sporteve;
2) Appropriate $200,000 from RDA unrestricted fund #550 into account
55090200.520400 – Business Development.
MEETING DATE: 09/18/06
AGENDA ITEM:
Approval of a Participation Agreement with Sporteve for a Retail Store at
3849 Culver Boulevard.
ATTACHMENTS
Page No.
1. Participation Agreement 1 - 47TENANT PARTICIPATION AGREEMENT
THIS TENANT PARTICIPATION AGREEMENT (this "Agreement") is
made and entered into this day of , 2006, by and between the
CULVER CITY REDEVELOPMENT AGENCY, a public body, corporate and
politic (hereinafter referred to as the "Agency") and SPORTEVE, INC., a
California corporation (hereinafter referred to as the "Participant").
RECITALS
A. The Participant has entered into a lease of the real property and
improvements located at 3849 Main Street in the City of Culver City (the
"City"), California (the "Site," as more particularly defined in Section 104
herein) with the purpose of operating a retail specialty store that primarily
sells high quality sporting apparel, footwear and gear for women and
related general merchandise (the "Sporteve Store").
B. The Site, including the Sporteve Store, is within the Redevelopment Plan
for the Culver City Redevelopment Project, as more particularly described
herein.
C. The Agency and Participant hereby desire to enter into this Agreement to
provide for an Agency loan to Participant to be used for the rehabilitation of
the improvements upon the Site in accordance with the terms and
provisions of this Agreement
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein, the parties hereby agree as follows:
t§ 100] SUBJECT OF AGREEMENT
[§ 101] Purpose of the Agreement
The purpose of this Agreement is to effectuate the public purposes of the
Agency, including the effectuation of the Redevelopment Plan for the Culver City
Redevelopment Project (the "Project Area") by providing for the rehabilitation by
the Participant of the hereinafter defined Site with the improvements described in
the Scope of Development attached hereto as Attachment No. 2 and
incorporated herein by reference (the "Improvements") The rehabilitation and
operation of such Improvements, and the fulfillment generally of this Agreement
are in the vital and best interests of the City and the health, safety, and welfare of
its residents, and in accord with the public purposes and provisions of applicable
federal, state and local laws and requirements.
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1[§ 102] The Redevelopment Plan
The Redevelopment Plan for the Project Area (the "Redevelopment Plan")
was approved and adopted and amended by the City Council of the City by
ordinance. This Agreement shall be subject to the provisions of the
Redevelopment Plan which is incorporated herein by this reference and made a
part hereof as though fully set forth herein.
The Project Area is located within the City. The exact boundaries are
specifically described in the Redevelopment Plan.
[§ 104] The Site
The Site is within the Project Area and is as depicted on the Site Map
attached hereto as Attachment No. 1 and incorporated herein by reference_
[§ 105] Parties to the Agreement
[§ 105.1] Agency
The Agency is a public body, corporate and politic, exercising
governmental functions and powers, and organized and existing under Chapter 2
of the Community Redevelopment Law of the State of California. "Agency" as
used in this Agreement, includes the Culver City Redevelopment Agency, and
any assignee of or successor to its rights, powers and responsibilities.
The address of the Agency is 9770 Culver Boulevard, Culver City,
California. For the purpose of this Agreement, mail delivered to Agency shall be
addressed to: Culver City Redevelopment Agency, Attn: Susan Evans, Assistant
Executive Director, 9770 Culver Boulevard, Culver City, California 90232-0507.
[§ 105.2] Participant
The Participant is Sporteve, Inc., a California corporation, whose
principal address for the purpose of this Agreement is
D'Lynda Fischer is the
of Participant.
[§ 106] Prohibition Against Change In Ownership, Management and
Control of Participant
The qualifications and identity of Participant are of particular concern to
the Agency. It is because of those qualifications and identity that the Agency has
entered into this Agreement with the Participant. Participant represents and
agrees that its undertakings pursuant to this Agreement are and will be used for
the purpose of the construction, development and rehabilitation of the
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2Improvements upon the Site and not for speculation in land holding. No
voluntary or involuntary successor in interest of Participant shall acquire any
rights or powers under this Agreement without the prior written approval of the
Agency.
Participant shall not assign all or any part of this Agreement without the
prior written approval of the Agency. This Agreement may be terminated by the
Agency if there is any change (voluntary or involuntary) in ownership,
management or control of the Sporteve Store or Sporteve, Inc. during the term of
this Agreement in violation of this Section 106.
[§ 2001 FINANCIAL AND PERFORMANCE OBLIGATIONS
[§ 201] Cost of Improvements
The total cost of the Improvements to be constructed on the Site is
approximately Two Hundred Thousand Dollars ($200,000).
[§ 202] Payment by Participant
Participant shall be responsible for the payment of any and all costs
related to the design, rehabilitation, development, construction and completion of
the Improvements. Participant shall timely pay all invoices directly to the
contractor(s) or material vendors hired to complete the Improvements.
[§203] Agency Loan
a. General. Subject to the terms and conditions of this Agreement,
including, without limitation, the disbursement conditions set forth in Section 204
herein, the Agency agrees to loan to Participant and Participant agrees to borrow
from the Agency a principal amount not to exceed Two Hundred Thousand
Dollars ($200,000) to be used solely to reimburse Participant for the cost of the
rehabilitation, development and construction of the Improvements (the "Agency
Loan").
b. Security. The Participant's obligations to the Agency for repayment
of the Agency Loan shall be evidenced by a promissory note executed by
Participant and (the "Third Party") in substantially the
form as attached hereto as Attachment No. 3 and incorporated herein by
reference (the "Promissory Note") and secured by: (i) a deed of trust
encumbering the real property located at in substantially the
form as attached hereto as Attachment No. 4 and incorporated herein by
reference (the "Deed of Trust"); (ii) a guaranty executed by in
substantially the form as attached hereto as Attachment No. 5 (the "Third Party
Guaranty"); and (iii) a guaranty executed by D'Lynda Fischer in substantially the
form attached hereto as Attachment No. 6 (the "Fischer Guaranty").
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3d. Agency Title Policy. Prior to disbursement of the Agency Loan, the
Agency shall obtain an ALTA Lender's Title Policy in substantially the form as
attached hereto as Attachment No. 6 showing the Deed of Trust in a second
priority position (the "Agency Title Policy"). All costs related to Agency Title
Policy shall be paid by Participant.
e. Agency Loan Repayment. The Agency Loan shall be repaid by
Participant as follows:
1. No interest shall accrue on the Agency Loan and Participant shall
make no repayments of the Agency Loan during the first twelve (12)
months immediately following the date of disbursement of the
Agency Loan (the "Disbursement Date").
2. The Agency Loan shall bear simple interest at the rate of six
percent (6%) per year, which shall begin to accrue one (1) year
following the Disbursement Date.
3. Participant shall begin making interest and principal balance
payments on the Agency Loan commencing upon the earlier of: (i)
the first March 1st immediately following the first calendar year
during which the Sporteve Store has One Million Dollars
($1,000,000) or more of gross sales; or (ii) the date which is five (5)
years following disbursement of the Agency Loan (the "Repayment
Commencement Date").
4. On the first day of the first (1 st) calendar month immediately
following the Repayment Commencement Date and on the first day
of each month thereafter, Participant shall pay to Agency an equal
payment so the Agency Loan is fully amortized and repaid in full
over one hundred twenty (120) calendar months commencing upon
the Repayment Commencement Date.
5. TRUTH IN LENDING DISCLOSURE:
PRINCIPAL INTEREST TOTAL DUE
$200,000
(This calculation assumes construction disbursement is
made of the full Two Hundred Thousand Dollars ($200,000)
and all repayments are timely made. Disbursements made
before that date may increase the interest, and
disbursements of a lesser amount or made after that date
may decrease the interest.)
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4[§204] Disbursement Conditions Precedent
The Agency shall disburse the Agency Loan to Participant within thirty (30)
days following satisfaction of the following conditions precedent:
a. This Agreement shall have been duly executed by Participant and
delivered to the Agency;
b. The Promissory Note shall have been duly executed by Participant
and the Third Party and delivered to the Agency;
c_ The Third Party Guaranty shall have been duly executed by the
Third Party and delivered to the Agency;
d. The Fischer Guaranty shall have been duly executed by Dlynda
Fischer and delivered to the Agency;
e. The Deed of Trust shall have been duly executed in recordable form
and delivered to the Agency;
f. The Participant shall have delivered to the Agency a fully executed
lease agreement between Participant and the owner of the Site
which obligates Participant to lease the Site for a minimum term of
ten (10) years after completion of the Improvements and provides
Participant with the authority to complete the obligations of this
Agreement (the "Lease");
g.
The Assistant Executive Director of the Agency shall have
reasonably determined all of the following:
(1) Participant has provided copies of all invoices from the
applicable contractors, vendors, or subcontractors which
clearly identify the completed work related to the
rehabilitation, development and construction of the
Improvements for which Participant seeks reimbursement
(the "Invoices");
(2) Participant has provided proof of timely payment by
Participant of all of the Invoices;
(3
) The Invoices reflect the rehabilitation, development and
construction of the Improvements described in the Scope of
Development attached hereto, as Attachment No. 2;
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5(4) Participant has provided evidence satisfactory to the
Assistant Agency Executive Director that the rehabilitation,
construction, and development of the Improvements is
complete and has been approved by the appropriate City
building inspector;
(5)
The amount of the Agency Loan to be disbursed to
Participant does not exceed the total cost evidenced by the
Invoices;
(6) Participant has provided unconditional lien releases from all
contractors or subcontractors who performed work on the
Site for which the Participant seeks Agency reimbursement;
(7)
Participant has submitted to the Agency a declaration signed
by Participant certifying under penalty of perjury all
information submitted in accordance with this Section 204 is
true, correct and complete;
(8) This Agreement is in full force and effect and Participant is
not in default of the obligations and provisions hereunder,
including without limitation, the obligations set forth in
Section 207 herein;
(9) The Agency Title Policy is ready to issue in substantially the
form attached hereto as Attachment No. 6;
(10) Neither Participant nor any of its officers, employees, agents,
contractors or subcontractors is in violation of any Federal,
State or local law, rule or regulation; and
(11) The Third Party Guaranty, the Fischer Guaranty, the Lease,
the Deed of Trust and the Promissory Note are in full force
and effect and neither Participant nor the Third Party are in
default thereof, as applicable.
[§ 207] Additional Obligations of Participant
During the term of the Agency Loan, Participant hereby agrees that
Participant shall:
1. Operate the Sporteve Store upon the Site, which is a preferred use
under the Redevelopment Plan as set forth in Section 401 herein.
2. Purchase materials and supplies from vendors located within the
City to the extent reasonably and financially feasible;
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63. Identify the City as the location of its principal offices and uses in
the area in each and every publication, advertisement, report,
written or oral interview, periodical, newsletter and other marketing
materials which are produced by Participant or at Participant's
request and which relate to and identify principal offices;
4. Refrain from pursuing, continuing to pursue, requesting or receiving
any reduction in or appeal of the assessed value of the Site. In the
event of damage to the Site due to earthquake or other similar
catastrophic cause, Participant shall not request a reduction in
assessed value of the Site caused by said damage. Participant
shall assist Agency in obtaining an increase in the assessed value
of the Site to reflect the rehabilitation, construction and development
of the Improvements thereon.
5. Be solely responsible for all necessary testing of the Site for
hazardous materials pursuant to all applicable laws, statutes, rules
and regulations. Participant shall also be responsible for site
conditions, including, but not limited to, flood zones, Alquist-Priolo,
and similar matters. For purposes of this Agreement, "hazardous
materials" shall mean asbestos; polychlorinated biphenyls (whether
or not highly chlorinated); radon gas; radioactive materials;
explosives; chemicals known to cause cancer or reproductive
toxicity; hazardous waste, toxic substances or related materials;
petroleum and petroleum product, including, but not limited to,
gasoline and diesel fuel; those substances defined as a "Hazardous
Substance", as defined by Section 9601 of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980,
42 U.S.C. 9601, et seq., or as "Hazardous Waste" as defined by
Section 6903 of the Resource Conservation and Recovery Act, 42
U.S.C. 6901, et seq.; an "Extremely Hazardous Waste," a
"Hazardous Waste" or a "Restricted Hazardous Waste," as defined
by The Hazardous Waste Control Law under Section 25115, 25117
or 25122.7 of the California Health and Safety Code, or is listed or
identified pursuant to Section 25140 of the California Health and
Safety Code; a "Hazardous Material", "Hazardous Substance,"
"Hazardous Waste" or "Toxic Air Contaminant" as defined by the
California Hazardous Substance Account Act, laws pertaining to the
underground storage of hazardous substances, hazardous
materials release response plans, or the California Clean Air Act
under Sections 25316, 25281, 25501, 25501.1 or 39655 of the
California Health and Safety Code; "Oil" or a "Hazardous
Substance" listed or identified pursuant to 311 of the Federal Water
Pollution Control Act, 33 U.S.C. 1321; a "Hazardous Waste,"
"Extremely Hazardous Waste" or an "Acutely Hazardous Waste"
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7listed or defined pursuant to Chapter 11 of Title 22 of the California
Code of Regulations Sections 66261_1 - 66261.126; chemicals
listed by the State of California under Proposition 65 Safe Drinking
Water and Toxic Enforcement Act of 1986 as a chemical known by
the State to cause cancer or reproductive toxicity pursuant to
Section 25249.8 of the California Health and Safety Code; a
material which due to its characteristics or interaction with one or
more other substances, chemical compounds, or mixtures,
materially damages or threatens to materially damage, health,
safety, or the environment, or is required by any law or public
agency to be remediated, including remediation which such law or
government agency requires in order for the property to be put to
the purpose proposed by this Agreement; any material whose
presence would require remediation pursuant to the guidelines set
forth in the State of California Leaking Underground Fuel Tank Field
Manual, whether or not the presence of such material resulted from
a leaking underground fuel tank; pesticides regulated under the
Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. 136 et
seq.; asbestos, PCBs, and other substances regulated under the
Toxic Substances Control Act, 15 U.S.C. 2601 et seq.; any
radioactive material including, without limitation, any "source
material," "special nuclear material," "by-product material," "low-
level wastes," "high-level radioactive waste," "spent nuclear fuel" or
"transuranic waste" and any other radioactive materials or
radioactive wastes, however produced, regulated under the Atomic
Energy Act, 42 U.S.C. 2011 et seq., the Nuclear Waste Policy Act,
42 U.S.C. 10101 et seq., or pursuant to the California Radiation
Control Law, California Health and Safety Code, Sections 25800 et
seq.; hazardous substances regulated under the Occupational
Safety and Health Act, 29 U.S.C. 651 et seq., or the California
Occupational Safety and Health Act, California Labor Code,
Sections 6300 et seq.; and/or regulated under the Clean Air Act, 42
U.S.C. 7401 et seq. or pursuant to The California Clean Air Act,
Sections 3900 et seq. of the California Health and Safety Code.
Any studies and reports generated by Participant's testing for
hazardous materials shall be made available to Agency upon
Agency's request.
6. Plan and host at least one (1) community event per calendar year at
the Sporteve Store, which event shall be pre-approved by the
Agency Assistant Executive Director in writing.
[§208] Loan Acceleration
Agency, at its sole discretion, shall have the right to accelerate repayment
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8by the Participant of the outstanding principal balance of the Agency Loan plus
accrued interest upon any of the following circumstances:
1. If prior to full repayment of the Agency Loan, including accrued
interest, Participant ceases operations of the Sporteve Store at the
Site for more than thirty (30) consecutive days;
2. Participant's fails to repay the Agency Loan or portion thereof in
accordance with Section 204 herein;
3. Participant or the Third Party, as applicable, is in default of this
Agreement, including without limitation the provisions of Section
207 herein, the Promissory Note, the Third Party Guaranty, the
Fischer Guaranty or the Deed of Trust;
4. Participant conveys or transfers its interest in the Sporteve Store,
the Site, the Lease or there is a change in the ownership and/or
management of Participant; or
5. This Agreement is terminated pursuant to Section 509 herein.
[§ 300] DEVELOPMENT AND OCCUPATION OF THE SITE
[§ 301] Scope of Development
Participant shall complete the development, construction and rehabilitation
of the Improvements upon the Site in accordance with and as described in the
Scope of Development (Attachment No. 2).
[§ 302] Cost of Development
The costs of constructing, rehabilitating, developing and maintaining the
Improvements shall be borne solely by Participant.
[§ 304] Antidiscrimination During Construction
Participant for itself and its successors and assigns, contractors and
subcontractors, agree that during and with respect to the construction of the
Improvements, Participant will not discriminate against any employee or applicant
for employment because of sex, marital status, race, color, religion, creed, age,
national origin, disability or ancestry.
[§ 305] Insurance/Indemnity
Prior to execution of this Agreement by the Agency, Participant shall
furnish or shall cause to be furnished to the Agency, duplicate originals or
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9appropriate certificates, together with an executed endorsement, of bodily injury
and property damage insurance policies in the amount of at least One Million
Dollars ($1,000,000.00) combined single limit, naming Agency, the City and each
of their officers and employees as additional insureds. Such insurance shall be
maintained until the Agency Loan, including accrued interest, is repaid in full.
Participant shall indemnify, defend and hold harmless Agency, the City and each
of their officers and employees from and against all claims, liability, loss, damage,
costs or expenses (including reasonable attorneys' fees and court costs)
("Claims") arising from or as a result of the death of any person or any accident,
injury, loss or damage whatsoever caused to any person or to the property of any
person which shall occur on or adjacent to the Site, or otherwise in connection
with this Agreement, and which shall be directly or indirectly caused by any acts
done or any errors or omissions of Participant or its agents, servants, employees
or contractors relating to construction activity. The foregoing indemnification shall
not apply to any Claims which are the result of Agency's, City's or any of their
respective officers', employees', contractors' or agents' sole negligence or willful
misconduct.
[§ 308] Local, State, and Federal Laws
Participant hereby agrees to carry out the rehabilitation, development,
construction (as defined by applicable law) and operation of the Improvements on
the Site, including, without limitation, any and all public works (as defined by
applicable law), in conformity with all applicable local, State and Federal laws,
including, without limitation, all applicable Federal and State labor laws (including,
without limitation, any requirement to pay State prevailing wages). Participant
hereby expressly acknowledges and agrees neither City nor Agency has ever
affirmatively represented to Participant or its contractor(s) for the Development in
writing or otherwise, in a call for bids or otherwise, the work to be covered by the
bid or contract is not a "public work," as defined in Section 1720 of the Labor
Code. Participant hereby agrees Participant shall have the obligation to provide
any and all disclosures, representations, statements, rebidding, and
identifications which may be required by Labor Code Sections 1726 and 1781, as
the same may be enacted, adopted or amended from time to time, or any other
provision of law. Participant hereby agrees Participant shall have the obligation
to provide and maintain any and all bonds to secure the payment of contractors
(including the payment of wages to workers performing any public work) which
may be required by the Civil Code, Labor Code Section 1781, as the same may
be enacted, adopted or amended from time to time, or any other provision of law.
Participant hereby agrees Participant shall have the obligation, at Participant's
sole cost, risk and expense, to obligate any party as may be required by Labor
Code Sections 1726 and 1781, as the same may be enacted, adopted or
amended from time to time, or any other provision of law. Participant shall
indemnify, protect, defend and hold harmless Agency, City and their respective
officers, employees, contractors and agents, with counsel reasonably acceptable
to Agency and City, from and against any and all loss, liability, damage, claim,
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10cost, expense, and "increased costs" (including labor costs, penalties, reasonable
attorney's fees, court and litigation costs, and fees of expert witnesses) which, in
connection with the installation, construction (as defined by applicable law) and
operation of the Development, including, without limitation, any and all public
works (as defined by applicable law), results or arises in any way from any of the
following: (1) the noncompliance by Participant of any applicable local, State or
Federal law, including, without limitation, any applicable Federal or State labor
laws (including, without limitation, if applicable, the requirement to pay state
prevailing wages); (2) the implementation of Sections 1726 and 1781 of the Labor
Code, as the same may be enacted, adopted or amended from time to time, or
any other similar law; (3) failure by Participant to provide any required disclosure,
representation, statement, rebidding and/or identification which may be required
by Labor Code Sections 1726 and 1781, as the same may be enacted, adopted
or amended from time to time, or any other provision of law; (4) failure by
Participant to provide and maintain any and all bonds to secure the payment of
contractors (including the payment of wages to workers performing any public
work) which may be required by the Civil Code, Labor Code Section 1781, as the
same may be enacted, adopted or amended from time to time, or any other
provision of law; and (5) failure by the Participant to obligate any party as may be
required by Labor Code Sections 1726 and 1781, as the same may be enacted,
adopted or amended from time to time, or any other provision of law. It is agreed
by the parties, in connection with the development, construction (as defined by
applicable law) and operation of the Development, including, without limitation,
any public work (as defined by applicable law), Participant shall bear all risks of
payment or non-payment of State prevailing wages and the implementation Labor
Code Sections 1726 and 1781, as the same may be enacted, adopted or
amended from time to time, and any other provision of law. "Increased costs" as
used in this Section shall have the meaning ascribed to it in Labor Code Section
1781, as the same may be enacted, adopted or amended from time to time. The
foregoing indemnity shall survive termination of this Agreement.
[§ 309] City and Other Governmental Agency Permits
Participant hereby certifies that any and all permits required by the City or
any other governmental agency approvals required by the construction,
rehabilitation and development of the Improvements upon the Site have been
secured.
[§ 310] Rights of Access
Representatives of Agency shall have the reasonable right of access to the
Site with twenty-four hours' (24-hours') notice without charges or fees, at normal
business hours for the purposes of this Agreement, including, but not limited to,
the inspection of the Improvements. Such representatives of Agency shall be
those who are so identified by the Assistant Executive Director of Agency. The
representatives shall take such precautions as may be reasonably necessary,
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11
1 1including wearing appropriate head and eye wear, to provide for their safety and
protection prior to entering the Site.
[§ 311] Prohibition Against Transfer or Assignment of Rights
The rights and obligations under this Agreement are personal to
Participant and shall not be transferred or assigned to any other person, entity or
individual other than the Third Party as set forth herein, without prior written
approval of the Agency for a period ending on the date the Agency Loan, plus
interest, is fully repaid. The Agency shall approve or disapprove a proposed
transfer in writing, no later than thirty (30) days after receipt of a written request
for approval of transfer from Participant. If contrary to the provisions of this
Agreement, Participant does attempt to transfer or assign, or in fact transfers or
assigns, this Agreement or any of the rights or obligations herein, then this
Agreement shall be automatically terminated and become null and void. Upon
such termination, repayment of the outstanding principal balance of the Agency
Loan, plus accrued interest shall be accelerated and shall be immediately due
and payable to the Agency.
[§ 400] USE OF THE SITE
[§ 401] Uses
Participant agrees to devote the Site for the Sporteve Store which shall be
operated by Participant (or other individual approved in writing by Agency's
Assistant Executive Director, in her/his sole discretion). Use of the Site for the
Sporteve Store is a use permitted by the Redevelopment Plan and is specifically
a "preferred use" which is defined as a commercial business which serves the
community.
[§ 402] Maintenance of the Site
Participant agrees to maintain the Sporteve Store, including the
Improvements on the Site in a first quality condition and shall keep the Site free
from any accumulation of debris or waste materials. Participant shall also
maintain any landscaping whether existing or required to be planted under the
Scope of Development (Attachment No. 2) in a healthy, pruned and debris-free
condition.
[§ 403] Obligation to Refrain from Discrimination
Participant covenants and agrees for itself, its successors, assigns and
every successor in interest to the the Sporteve Store, the Site or any part thereof,
that there shall be no discrimination against or segregation of any person, or
group of persons, on account of sex, marital status, race, color, religion, creed,
national origin, disability or ancestry in the sale, lease, sublease, transfer, use,
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12occupancy, tenure or enjoyment of the Site nor shall Participant, or any person
claiming under or through them, establish or permit any such practice or practices
of discrimination or segregation with reference to the selection, location, number,
use or occupancy of tenants, lessees, subtenants, sublessees, or vendees of the
Site. Participant's obligations under this Section shall be limited to the acts and
omissions of Participant.
[§ 404] Form of Nondiscrimination and Nonseoreoation Clauses
Participant shall refrain from restricting the sale, lease, sublease, rental,
transfer, use, occupancy, tenure, or enjoyment of the Site (or any part thereof) on
the basis of sex, marital status, race, color, religion, creed, ancestry, disability or
national origin of any person. All such deeds, leases, or contracts relating to the
sale, transfer or leasing of the Site, or any part thereof or interest therein, shall
contain or be subject to substantially the following nondiscrimination or
nonsegregation clauses:
1. In deeds: "The grantee herein covenants by and for itself, its
successors and assigns, and all person claiming under or through
them, that there shall be no discrimination against or segregation of,
any person or group of persons on account of sex, marital status,
race, color, religion, creed, national origin, disability or ancestry in
the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the land herein conveyed, nor shall the grantee itself
or any person claiming under or through it, establish or permit any
such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of
tenants, lessees, subtenants, sublessees, or vendees in the land
herein conveyed. The foregoing covenants shall run with the land."
2. In leases: "The Lessee herein covenants by and for itself, its
successors and assigns, and all persons claiming under or through
them, and this lease is made and accepted upon and subject to the
following conditions: That there shall be no discrimination against
or segregation of any person or group of persons, on account of
sex, marital status, race, color, religion, creed, national origin,
disability, or ancestry, in the leasing, subleasing, renting,
transferring, use, occupancy, tenure or enjoyment of the land herein
leased, nor shall Lessee itself, or any person claiming under or
through it, establish or permit such practice or practices of
discrimination or segregation with reference to the selection,
location number, or occupancy of tenants, lessees, sublessees,
tenants, or vendees in the land herein leased."
3. In contracts relating to the sale, transfer or leasing of the Site, or
any part thereof or interest therein: "There shall be no
TPA (9-13-06) (2).cloc
1314
discrimination against or segregation of, any person or group of
persons on account of sex, marital status, race, color, religion,
creed, national origin, disability, or ancestry in the sale, lease,
sublease, rental, transfer, use, occupancy, tenure or enjoyment of
the land, nor shall the transferee itself or any person claiming under
or through it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants,
sublessees, or vendees of the land."
[§ 405] Effect and Duration
This Agreement shall, without regard to technical classification and
designation, be binding on and shall inure to the benefit of the parties and their
respective successors and assigns. Except as set forth in the following sentence,
this Agreement shall remain in effect throughout the duration of the
Redevelopment Plan, unless this Agreement provides for their earlier termination.
The covenants against discrimination (as described in Sections 403 and 404)
shall remain in perpetuity.
[§ 500] DEFAULTS, REMEDIES AND TERMINATION
[§ 501] Defaults - General
a. Subject to the extensions of time set forth in Section 604 herein,
failure or delay by either party to perform any term or provision of this Agreement
constitutes a default under this Agreement and failure or delay by Participant or
the Third Party to perform any term or provision of the Lease, the Third Party
Guaranty, the Promissory Note or the Deed of Trust constitutes a default under
this Agreement.
b. The injured party shall give written notice of default to the party in
default, specifying the default complained of by the injured party. Failure or delay
in giving such notice shall not constitute a waiver of any default, nor shall it
change the time of default. Except as otherwise expressly provided in this
Agreement, any failures or delays by either party in asserting any of its rights and
remedies as to any default shall not operate as a waiver of any default or of any
such rights or remedies. Delays by either party in asserting any of its rights and
remedies shall not deprive either party of its right to institute and maintain any
actions or proceedings which it may deem necessary to protect, assert or enforce
any such rights or remedies.
c. Except for such other cure period which may otherwise be
specifically provided in this Agreement, if a monetary event of default occurs,
prior to exercising any remedies hereunder, the injured party shall give the party
in default written notice of such default. The party in default shall have a period
TPA (9-13-06) (2).docof seven (7) calendar days after such notice is received or deemed received
within which to cure the default prior to exercise of remedies by the injured party.
d. Except for such other cure period which may otherwise be
specifically provided in this Agreement, if a non-monetary event of default occurs,
prior to exercising any remedies hereunder, the injured party shall give the party
in default notice of such default. If the default is reasonably capable of being
cured within thirty (30) calendar days after such notice is received or deemed
received, the party in default shall have such period to effect a cure prior to
exercise of remedies by the injured party. If the default is such that it is not
reasonably capable of being cured within thirty (30) days, and the party in default
(i) initiates corrective action within said period, and (ii) diligently, continually, and
in good faith works to effect a cure as soon as possible, then the party in default
shall have such additional time as is reasonably necessary to cure the default
prior to exercise of any remedies by the injured party; provided, however, in no
event shall the injured party be precluded from exercising remedies if the non-
monetary event of default is not cured within ninety (90) days, or the injured
party's rights under this Agreement or otherwise becomes or is about to become
materially jeopardized by any failure to cure a default.
[§ 502] Institution of Legal Actions
In addition to any other rights or remedies, any party may institute legal
action to cure, correct, or remedy any default to recover damages for any default,
or to obtain any other remedy consistent with the purpose of this Agreement.
Such legal actions must be instituted in the Superior Court of the County of Los
Angeles, State of California, in any other appropriate court in that County, or in
the Federal District Court in the Central District of California.
[§ 503] Applicable Law
The laws of the State of California shall govern the interpretation and
enforcement of this Agreement.
[§ 504] Acceptance of Service of Process
In the event any legal action is commenced by the Participant against
Agency, service of process on Agency shall be made by personal service upon
the Assistant Executive Director or Secretary of Agency, or in such other manner
as may be provided by law.
In the event any legal action is commenced by Agency against Participant,
service of process on Participant shall be made by personal service, or in such
manner as may be provided by law, and shall be valid whether made within or
without the State of California.
TPA (9-13-06) (2).doc
15[§ 505] Rights and Remedies Are Cumulative
Except with respect to rights and remedies expressly declared to be
exclusive in this Agreement, the rights and remedies of the parties are cumulative
and the exercise by any party of one or more of such rights or remedies shall not
preclude the exercise by it, at the same or different times, of any other rights or
remedies for the same default or any other default by any party.
[§ 507] Termination by Participant
At any time before Agency dispenses any funds pursuant to Section 204 of
this Agreement, Participant, at its option, may terminate this Agreement if the
Agency is in default of any of the terms of this Agreement and any such default is
not cured in accordance with Section 501, above. Participant may also terminate
this Agreement at any time by paying off the outstanding balance of the Agency
Loan plus accrued interest so long as Participant is not in default hereunder.
[§ 509] Termination by Agency
The Agency at its option may terminate this Agreement if Participant is in
default of any of the terms to this Agreement and any such default is not cured in
accordance with Section 501, above. In the event of termination of this
Agreement by the Agency, repayment by Participant of the Agency Loan shall be
accelerated and all outstanding principal and accrued interest to date shall be
immediately due and payable to the Agency.
[§ 600] GENERAL PROVISIONS
[§ 601] Notices, Demands, and Communications between the
Parties
Formal notices, demands, and communications between Agency and
Participant shall be sufficiently given if personally served, or dispatched by
registered or certified mail, postage prepaid, return receipt requested, to the
principal offices of, Agency and Participant, as designated in Sections 105. Such
written notices, demands, and communications may be sent in the same manner
to such other addresses as either party may from time to time designate by mail
as provided in this Section 601.
[§ 602] Conflict of Interest
No member, official or employee of Agency shall have any personal
interest, direct or indirect, in this Agreement nor shall any such member, official or
TPA (9-13-06) (2).doc
16
16employee participate in any decision relating to the Agreement which affects his
or her personal interests or the interests of any corporation, partnership or
association in which he, or she, is directly or indirectly, interested.
[§ 603] Nonliability of Agency Officers and Employees
No member, officer, director, employee, agent or trustee of Agency or
Participant shall be personally liable to the other party, or any successor in
interest, for any default or breach, for any amount which may become due or for
any obligation under the terms of this Agreement.
[§ 604] Enforced Delay: Extension of Time of Performance
In addition to specific provisions of this Agreement, performance by either
party hereunder shall not be deemed to be in default where delays or defaults are
due to war, insurrection, strikes, lock-outs, riots, floods, earthquakes, fires,
casualties, acts of God, acts of the public enemy, epidemics, quarantine
restrictions, freight embargoes, lack of transportation, litigation including litigation
challenging the validity of this transaction or any element thereof, unusually
severe weather, inability to secure necessary labor, materials or tools, delays of
any contractor, subcontractor, or supplier, acts of the other party, or any other
cause beyond the control or without the fault of the party claiming an extension of
time to perform. An extension of time for any such causes shall be for the period
of the enforced delay and shall commence to run from the time of the
commencement of the cause, if notice by the party claiming such extension is
sent to the other party within thirty (30) days after the commencement of the
cause. Times of performance under this Agreement may also be extended upon
mutual agreement by Agency and Participant in writing.
[§ 605] Inspection of Books and Records
Agency has the right, after reasonable written notice, to inspect the books
and records of Participant pertaining to Sporteve Store, including without
limitation, the Improvements upon the Site, as pertinent to the purposes of this
Agreement.
[§ 606] Approvals
Notwithstanding any other provision in this Agreement, approvals required
of Agency or Participant shall not be unreasonably withheld or delayed, and any
approval or disapproval shall be given within a reasonable time.
[§ 607] Authority for Signatures
Agency and Participant warrant and represent the persons executing this
Agreement are duly authorized to execute this Agreement on behalf of said
TPA (9-1 3-06) (2).doc
1
17parties and by so executing this Agreement the parties hereto are formally bound
to the provisions of this Agreement. Each party further acknowledges it has
obtained all necessary and legally required approvals for entry into this
Agreement.
[§ 700] ENTIRE AGREEMENT, WAIVERS, CONFIDENTIALITY AND
AMENDMENTS
This Agreement shall be executed in two (2) duplicate originals each of
which is deemed to be an original. This Agreement, including all attachments
hereto, constitute the entire understanding and agreement of the parties. Each of
said attachments is hereby incorporated herein by this reference.
This Agreement integrates all of the terms and conditions mentioned
herein or incidental hereto, and supersedes all negotiations or previous
agreements between the parties with respect to all or any part of the Site.
All waivers of the provisions of this Agreement and all amendments hereto
must be in writing and signed by the appropriate authorities of Agency and
Participant.
[§ 800] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
If this Agreement, when executed by Participant and delivered to Agency
has not been authorized, executed and delivered by Agency within thirty (30)
days after Agency's receipt, then this Agreement may be terminated by
Participant upon written notice to Agency. The date of this Agreement shall be
the date when the Agreement is signed on behalf of Agency.
[Signatures on following pages]
TPA (9-13-06) (2).doc
18
18CULVER CITY REDEVELOPMENT AGENCY
Dated: By
Susan Evans,
Assistant Executive Director
APPROVED AS TO FORM:
KANE, BALLMER & BERKMAN
Agency General Counsel
By: SPORTEVE, INC.,
a California corporation
Dated:
ici
TPA (9-13-06) (2).doc
19ATTACHMENT NO. 1
LEGAL DESCRIPTION
Real property in the City of Culver City, County of Los Angeles, State of California,
described as follows:
Lots 26 and 27 and the northeast 4.61 feet of Lot 25 of Tract No. 4161, in the City of
Culver City, as per map recorded in Book 46 Page 32 of Maps, in the office of the
County recorder of said County.
APN 4206-015-015
ZcDATTACHMENT NO. 2
SCOPE OF DEVELOPMENT
[Behind this page]
21ATTACHMENT NO. 3
FORM OF PROMISSORY NOTE
PROMISSORY NOTE
TO THE CULVER CITY REDEVELOPMENT AGENCY
Culver City, California
Original Principal Amount
Not to Exceed $200,000 , 2006
FOR VALUE RECEIVED, SPORTEVE INC., a California corporation (the
"Participant ") and , a [confirm
status] ("Third Party") (the "Participant" and the 'Third Party" are referred to
herein collectively as the "Borrower") hereby promise to pay to the CULVER
CITY REDEVELOPMENT AGENCY, a public body, corporate and politic (THE
"Agency"), or order, an original principal amount not to exceed TWO HUNDRED
THOUSAND DOLLARS ($200,000) or so much thereof as may be disbursed by
the Agency to the Developer pursuant to the Tenant Participation Agreement
dated , 2006 between the Participant and the Agency (the
"Agreement"). Any capitalized term not otherwise defined herein, shall have the
meaning ascribed to it in the Loan Agreement. The obligations of Borrower to
Agency hereunder is subject to the terms of the Agreement, this Note, a
Guaranty executed by the Third Party and dated , 200_ (the "Third
Party Guaranty"), and a Deed of Trust (with Assignment of Rents) dated
, 2006 (the "Deed of Trust") given to the Agency for the purpose
of securing this Note. Said documents are public records on file in the offices of
Agency, and the provisions of said documents are incorporated herein by this
reference as though set forth in full herein.
1. This Note evidences the obligation of the Participant to the Agency for the
repayment of an original principal amount of $200,000 of funds loaned to
the Participant by Agency for the reimbursement of certain costs paid by
Participant for the rehabilitation, development and construction of the
Improvements in accordance with the Agreement.
2. This Note is payable at the principal office of the Agency, 9770 Culver
Boulevard Culver City, California 90232-0507, or at such other place as
the holder hereof may inform the Participant in writing, in lawful money of
the United States.
3. This Note shall be secured by the Deed of Trust and the Third Party
Guaranty.
Note (9-12-06) (2).doc
Page 1 of 5
22.4. No interest shall accrue on this Note and Participant shall make no
repayments of the Agency Loan during the first twelve (12) months
immediately following the date of disbursement of the Agency Loan or
portion thereof (the "Disbursement Date").
5. This Note shall bear simple interest at the rate of six percent (6%) per
year, which shall begin to accrue one (1) year following the Disbursement
Date.
6. Repayment by Participant of the principal balance and accrued interest
due under this Note shall commence upon the earlier of: (i) the first March
1st immediately following the first calendar year during which the Sporteve
Store has One Million Dollars ($1,000,000) or more of gross sales; or (ii)
the date which is five (5) years following disbursement of the Agency Loan
(the "Repayment Commencement Date").
7. On the first day of the first (1 st) calendar month immediately following the
Repayment Commencement Date and on the first day of each month
thereafter, Participant shall pay to Agency an equal payment so that the
principal balance of this Note, plus accrued interest, is fully amortized and
repaid in full over one hundred twenty (120) calendar months commencing
upon the Repayment Commencement Date.
8. The entire unpaid principal balance and accrued interest of this Note shall
be immediately due and payable upon any of the following circumstances,
each of which shall constitute a default under this Note:
a. If prior to full repayment of this Note, including accrued interest,
Participant ceases operations of the Sporteve Store at the Site for
more than thirty (30) consecutive ,clays;
b. Participant's fails to repay the principal balance and accrued of this
Note or portion thereof in accordance with Section 7, above;
c. Participant is in default of the Agreement, including without
limitation the provisions of Section 207 therein, the Promissory
Note, the Third Party Guaranty or the Deed of Trust;
d. The Third Party is in default of the Agreement, including without
limitation the provisions of Section 207 therein, the Promissory
Note, the Third Party Guaranty, or the Deed of Trust;
e. Participant conveys or transfers its interest in the Sporteve &ore,
the Site, the Lease or there is a change in ownership or
management of Participant; or
Note (9-12-06) (2).doc
Page 2 of 5
23f. The Agreement is terminated pursuant to Section 509 therein.
9. Upon the failure of Participant and/or the Third Party, as applicable, to
perform or observe any term or provision of this Note, or upon the
occurrence of any event of default under the terms of this Note, the Deed
of Trust, the Agreement, or the Third Party Guaranty, the holder may
exercise its rights or remedies thereunder.
10. a. Upon occurrence of a default under this Note, the Agency shall give
written notice of default to the Borrower, specifying the default.
Failure or delay in giving such notice shall not constitute a waiver of
any default, nor shall it change the time of default. Any failures or
delays by the Agency in asserting any of its rights and remedies as
to any default shall not operate as a waiver of any default or of any
such rights or remedies_ Delays by the Agency in asserting any of
its rights and remedies shall not deprive either party of its right to
institute and maintain any actions or proceedings which it may
deem necessary to protect, assert or enforce any such rights or
remedies.
b. If a monetary event of default occurs, prior to exercising any
remedies hereunder, the Agency shall give the Borrower written
notice of such default. The Borrower shall have a period of seven
(7) calendar days after such notice is received or deemed received
within which to cure the default prior to exercise of remedies by the
Agency.
c. If a non-monetary event of default occurs, prior to exercising any
remedies hereunder, the Agency shall give the Borrower notice of
such default. If the default is reasonably capable of being cured
within thirty (30) calendar days after such notice is received or
deemed received, the party in default shall have such period to
effect a cure prior to exercise of remedies by the injured party. If
the default is such that it is not reasonably capable of being cured
within thirty (30) days, and the Borrower (i) initiates corrective
action within said period, and (ii) diligently, continually, and in good
faith works to effect a cure as soon as possible, then the Borrower
shall have such additional time as is reasonably necessary to cure
the default prior to exercise of any remedies by the injured party;
provided, however, in no event shall the Agency be precluded from
exercising remedies if the non-monetary event of default is not
cured within ninety (90) days, or the Agency's rights under this Note
or otherwise become or are about to become materially jeopardized
by any failure to cure a default.
Note (9-12-06) (2).doc
Page 3 of 511. This Note, together with any accrued interest thereon then owing, may be
paid in whole or in part in advance without penalty. Upon such
prepayment of the principal amount of this Note, together with any accrued
interest thereon then owing, the holder of this Note shall surrender this
Note at the principal business office of Participant; and notwithstanding
any failure to surrender this Note, all obligations and duties of Participant
shall thereupon cease to exist and this Note shall no longer be deemed to
be outstanding.
12. Borrower waives presentment for payment, demand, protest, and notices
of dishonor and of protest; the benefits of all waivable exemptions; and all
defenses and pleas on the ground of any extension or extensions of the
time of payment or of any due date under this Note, in whole or in part,
whether before or after maturity and with or without notice. Borrower
hereby agrees to pay all costs and expenses, including reasonable
attorneys' fees, which may be incurred by the holder hereof, in the
enforcement of this Note, the Third Party Guaranty, the Deed of Trust or
any term or provision thereunder.
13. If the rights created by this Note shall be held by a court of competent
jurisdiction to be invalid or unenforceable as to any part of the obligations
described herein, the remaining obligations shall be completely performed
and paid.
14. The obligations of Participant under this Note are binding on its successors
and assigns.
[Signatures on following pages]
[Remainder of page left intentionally blank]
Note (9-12-06) (2).doc
Page 4 of 5
25IN WITNESS WHEREOF, Borrower hereby executes this Note as of the
dates set forth below.
PARTICIPANT
Sporteve, Inc., a California corporation
Dated: By: THIRD PARTY
[INSERT]
Dated: By: Note (9-12-06) (2).doc
Page 5 of 5
2(0ATTACHMENT NO. 4
FORM OF DEED OF TRUST
OFFICIAL BUSINESS
Document entitled to free
recording per Government
Code Section 6103.
Recording Requested By and
When Recorded Mail To:
CULVER CITY REDEVELOPMENT AGENCY
9770 Culver Boulevard
Culver City, California 90232-0507
Attn: Kellee Fritzal
Space above line for Recorder's Use
DEED OF TRUST
(With Assignment of Rents)
THIS DEED OF TRUST (with Assignment of Rents) is made this day of
, 2006, by and among (the
"Trustor"), (the "Trustee"), and the CULVER
CITY REDEVELOPMENT AGENCY, a public body, corporate and politic, (Beneficiary).
Witnessesth: 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 the following property (the "Trust
Estate"):
a. All of that certain real property in the City of Culver City, County of Los
Angeles, State of California more particularly described in Exhibit "A"
attached hereto and by this reference made a part hereof (such real
property is hereafter referred to as the "Subject Property");
b. All buildings, structures and other improvements now or in the future
located or to be constructed on the Subject Property (the "Improvements");
c. All tenements, hereditaments, appurtenances, privileges, franchises and
other rights and interests now or in the future benefiting or otherwise
relating to the Subject Property or the Improvements, including
easements, rights-of-way and development rights (the "Appurtenances").
DOT (9-12-06) (2).doc|1010|2:1(The Appurtenances, together with the Subject Property and the
Improvements, are hereafter referred to as the "Real Property");
d. Subject to the assignment to Beneficiary set forth in Paragraph 4 below,
all rents, issues, income, revenues, royalties and profits now or in the
future payable with respect to or otherwise derived from the Trust Estate
or the ownership, use, management, operation leasing or occupancy of
the Trust Estate, including those past due and unpaid (the "Rents");
e. All present and future right, title and interest of Trustor in and to all
inventory, equipment, fixtures and other goods (as those terms are
defined in Division 9 of the California Uniform Commercial Code (the
"UCC"), and whether existing now or in the future) now or in the future
located at, upon or about, or affixed or attached to or installed in, the Real
Property, or used or to be used in connection with or otherwise relating to
the Real Property or the ownership, use, development, construction,
maintenance, management, operation, marketing, leasing or occupancy of
the Real Property, including furniture, furnishings, machinery, appliances,
building materials and supplies, generators, boilers, furnaces, water tanks,
heating ventilating and air conditioning equipment and all other types of
tangible personal property of any kind or nature, and all accessories,
additions, attachments, parts, proceeds, products, repairs, replacements
and substitutions of or to any of such property (the "Goods," and together
with the Real Property, the "Property"); and
f. All present and future right, title and interest of Trustor in and to all
accounts, general intangibles, chattel paper, deposit accounts, money,
instruments and documents (as those terms are defined in the UCC) and
all other agreements, obligations, rights and written material (in each case
whether existing now or in the future) now or in the future relating to or
otherwise arising in connection with or derived from the Property or any
other part of the Trust Estate or the ownership, use, development,
construction, maintenance, management, operation, marketing, leasing,
occupancy, sale or financing of the Property or any other part of the Trust
Estate, including (to the extent applicable to the Property or any other
portion of the Trust Estate) (i) permits, approvals and other governmental
authorizations, (ii) improvement plans and specifications and architectural
drawings, (iii) agreements with contractors, subcontractors, suppliers,
project managers, supervisors, designers, architects, engineers, sales
agents, leasing agents, consultants and property managers, (iv) takeout,
refinancing and permanent loan commitments, (v) warranties, guaranties,
indemnities and insurance policies, together with insurance payments and
unearned insurance premiums, (vi) claims, demands, awards, settlements,
and other payments arising or resulting from or otherwise relating to any
insurance or any loss or destruction of, injury or damage to, trespass on or
DOT (9-12-06) (2).cloc
2taking, condemnation (or conveyance in lieu of condemnation) or public
use of any of the Property, (vii) license agreements, service and
maintenance agreements, purchase and sale agreements and purchase
options, together with advance payments, security deposits and other
amounts paid to or deposited with Trustor under any such agreements,
(viii) reserves, deposits, bonds, deferred payments, refunds, rebates,
discounts, cost savings, escrow proceeds, sale proceeds and other rights
to the payment of money, trade names, trademarks, goodwill and all other
types on intangible personal property of any kind or nature, and (ix) all
supplements, modifications, amendments, renewals, extensions,
proceeds, replacements and substitutions of or to any of such property
(the "Intangibles").
Trustor further grants to Trustee and Beneficiary, pursuant to the UCC, a security
interest in all present and future right, title and interest of Trustor in and to all Goods and
Intangibles and all of the Trust Estate described above in which a security interest may
be created under the UCC (collectively, the "Personal Property"). This Deed of Trust
constitutes a security agreement under the UCC, conveying a security interest in the
Personal Property to Trustee and Beneficiary. Trustee and Beneficiary shall have, in
addition to all rights and remedies provided herein, all the rights and remedies of a
"secured party" under the UCC and other applicable California law. Trustor covenants
and agrees that this Deed of Trust constitutes a fixture filing under Section 9313 and
9402(6) of the UCC.
FOR THE PURPOSE OF SECURING, in such order of priority as Beneficiary
may elect, the following: (1) due, prompt and complete observance, performance and
discharge of each and every condition, obligation, covenant and agreement contained
herein or contained in a promissory note executed by Trustor ("Third Party" therein)
dated on or about the date hereof (the "Note"), the Tenant Participation Agreement
dated (the "Agreement"), between D'Lynda Fischer (the
"Participant") and Beneficiary, and the Guaranty executed by Trustor dated on or about
the date hereof guaranteeing Participant's obligations under the Note and the
Agreement (the "Guaranty"); and (2) payment of indebtedness of Participant to the
Beneficiary in an original principal sum not to exceed TWO HUNDRED THOUSAND
DOLLARS ($200,000) (the "Agency Loan"), evidenced by the Note. The Note, the
Guaranty and the Agreement (collectively "Secured Obligations") and all of their terms
are incorporated herein by reference and this conveyance shall secure any and all
extensions, amendments, modifications or renewals thereof however evidenced, and
additional advances evidenced by any note reciting that it is secured hereby. Any
capitalized term not otherwise defined in this Deed of Trust shall have the meaning
ascribed to such term in the Note, Guaranty of Agreement, as applicable.
DOT (9-12-06) (2).doc|1010|29AND TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR
COVENANTS AND AGREES:
1. That Participant shall pay the Note at the time and in the manner provided
therein, and perform the obligations of Participant as set forth in the Secured
Obligations at the time and in the manner respectively provided therein.
2. That the Secured Obligations are incorporated in and made a part of this Deed of
Trust. Upon default of a Secured Obligation, and after the giving of notice and
the expiration of any applicable cure period, the Beneficiary, at its option, may
declare the whole of the indebtedness secured hereby to be due and payable.
3. That all rents, profits and income from the property covered by this Deed of Trust
are hereby assigned to the Beneficiary for the purpose of discharging the debt
hereby secured. Permission is hereby given to Trustor so long as no default
exists hereunder after the giving of notice and the expiration of any applicable
cure period, to collect such rents, profits and income for use in accordance with
the provisions of the Secured Obligations.
4. That upon default hereunder or under the aforementioned agreements, and after
the giving of notice and the expiration of any applicable cure period, Beneficiary
shall be entitled to the appointment of a receiver by any court having jurisdiction,
without notice, to take possession and protect the Property described herein and
operate same and collect the rents, profits and income therefrom.
5. That Trustor will keep the Improvements now existing or hereafter erected on the
Property insured against loss by fire and such other hazards, casualties, and
contingencies as may reasonably be required in writing from time to time by the
Beneficiary, and all such insurance shall be evidenced by standard fire and
extended coverage insurance policy or policies. In no event shall the amounts of
coverage be less than 100 percent of the insurable value of the Property. Such
policies shall be endorsed with standard mortgage clause with loss payable to
the Beneficiary and certificates thereof together with copies of original policies
shall be deposited with the Beneficiary.
6. To pay, at least 10 days before delinquency, any taxes and assessments
affecting said Property; to pay, when due, all encumbrances, charges and liens,
with interest, on said Property or any part thereof which appear to be prior or
superior hereto; and to pay all costs, fees, and expenses of this Deed of Trust.
Notwithstanding anything to the contrary contained in this Deed of Trust, Trustor
shall not be required to pay and discharge any such tax, assessment, charge or
levy so long as Trustor is contesting the legality thereof in good faith and by
appropriate proceedings, and Trustor has adequate funds to pay any liabilities
contested pursuant to this Section 7.
DOT (9-12-06) (2).doc|1010|37. To keep said Property in good condition and repair, subject to ordinary wear and
tear, casualty and condemnation, not to remove or demolish any buildings
thereon; to complete or restore promptly and in good and workmanlike manner
any building 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 (subject to Trustors right to contest the
validity or applicability of laws or regulations); not to commit or permit waste
thereof; not to commit, suffer or permit any act upon said Property in violation of
law and/or covenants, conditions and/or restrictions affecting said Property; not
to permit or suffer any material alteration of or addition to the buildings or
Improvements hereafter constructed in or upon said Property without the consent
of the Beneficiary.
8. 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 reasonable attorneys'
fees in a reasonable sum, in any such action or proceeding in which Beneficiary
or Trustee may appear.
9. Should Trustor fail, after the giving of notice and the expiration of any applicable
cure period, to make any payment or 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. Following default, after the giving
of notice and the expiration of any applicable cure period, Beneficiary or Trustee
being authorized to enter upon said Property for such purposes, may commence,
appear in and/or defend any action or proceeding purporting to affect the security
hereof or the rights or powers of Beneficiary or Trustee; may pay, purchase,
contest, or compromise any encumbrance, charge, or lien which in the judgment
of either appears to be prior or superior hereto; and, in exercising any such
powers, may pay necessary expenses, employ counsel, and pay his reasonable
fees.
10. Beneficiary shall have the right to pay fire and other property insurance
premiums when due should Trustor fail to make any required premium payments.
All such payments made by the Beneficiary shall be added to the principal sum
secured hereby.
11. To pay immediately and without demand all sums so expended by Beneficiary or
Trustee, under permission given under this Deed of Trust, with interest from date
of expenditure, at the highest rate of interest permitted by law.
12. That the funds to be advanced hereunder are to be used in accordance with the
DOT (9-12-06) (2).doc
5Secured Obligations; and upon the failure of Trustor, after the giving of notice
and the expiration of any applicable cure period, to keep and perform all the
covenants, conditions, and agreements of said Secured Obligations, the principal
sum and other charges provided for in the Note shall at the option of the
Beneficiary of this Deed of Trust become due and payable, anything contained
herein to the contrary notwithstanding.
13. Trustor further covenants that it will not voluntarily create, suffer, or permit to be
created against the Property subject to this Deed of Trust any lien or liens except
as authorized by Beneficiary and further that it will keep and maintain the
Property free from the claims of all persons supplying labor or materials which
will enter into the construction of any and all buildings now being erected or to be
erected on said premises. Notwithstanding anything to the contrary contained in
this Deed of Trust, Trustor shall not be obligated to pay any claims for labor,
materials or services which Trustor in good faith disputes and is diligently
contesting, provided that, except as otherwise agreed by Beneficiary, Trustor
shall, at Beneficiary's written request, within thirty (30) days after the filing of any
claim or lien (but in any event, and without any requirement that Beneficiary must
first provide a written request, prior to foreclosure) record in the Office of the
Recorder of Santa Clara County, a surety bond in an amount one-and-one-half (1
1/ 2
) times the amount of such claim item to protect against a claim of lien, or
provide such other security reasonably satisfactory to Beneficiary.
14_ That any and all Improvements made or about to be made upon the premises
covered by this Deed of Trust, and all plans and specifications, comply with all
applicable municipal ordinances and regulations and all other applicable
regulations made or promulgated, now or hereafter, by lawful authority, and that
the same will upon completion comply with all such municipal ordinances and
regulations and with the rules of the applicable fire rating or inspection
organization, bureau, association or office.
15. Trustor herein agrees to pay to Beneficiary or to the authorized loan servicing
representative of the Beneficiary a reasonable charge for providing a statement
regarding the obligation secured by this Deed of Trust as provided by Section
2954, Article 2, Chapter 2 Title 14, Division 3, of the California Civil Code.
IT IS MUTUALLY AGREED THAT:
16. Subject to and without interference or impairment of the rights of any senior
lender under a security instrument senior to this Deed of Trust, should the
Property or any part thereof be taken or damaged by reason of any public
improvement or condemnation proceeding, or damaged by fire, or earthquake, or
in any other manner, Beneficiary shall be entitled to all compensation, awards,
and other payments or relief therefor which are not used to reconstruct, restore
or otherwise improve the Property or part thereof that was taken or damaged,
DOT (9-12-06) (2).doc
6and shall be entitled at its option to commence, appear in and prosecute in its
own name, any action or proceedings, or to make any compromise or settlement,
in connection with such taking or damage. All such compensation, awards,
damages, rights of action and proceeds which are not used to reconstruct,
restore or otherwise improve the Property or part thereof that was taken or
damaged, including the proceeds of any policies of fire and other insurance
affecting said Property, are hereby assigned to Beneficiary. After deducting
therefrom all its expenses, including attorney's fees, the balance of the proceeds
which are not used to reconstruct, restore or otherwise improve the Property or
part thereof that was taken or damaged, shall be applied to the amount due
under the Note secured hereby. No amount applied to the reduction of the
principal shall relieve the Participant from making payments as required by the
Note.
17. a. Failure or delay by Trustor and/or Participant to perform any term or
provision respectively required to be performed under the Secured
Obligations, this Deed of Trust or any Senior Encumbrance constitutes a
default under this Deed of Trust.
b. Beneficiary shall give written notice of default to Trustor and Participant,
specifying the default complained of by the Beneficiary. Delay in giving
such notice shall not constitute a waiver of any default nor shall it change
the time of default.
c. Any failures or delays by Beneficiary in asserting any of its rights and
remedies as to any default shall not operate as a waiver of any default or
of any such rights or remedies. Delays by Beneficiary in asserting any of
its rights and remedies shall not deprive Beneficiary of its right to institute
and maintain any actions or proceedings which it may deem necessary to
protect, assert, or enforce any such rights or remedies.
d. If a monetary event of default occurs under the terms of the Note or this
Deed of Trust, prior to exercising any remedies hereunder or thereunder
Beneficiary shall give Trustor and Participant written notice of such
default. Trustor shall have a reasonable period of time after such notice is
given within which to cure the default prior to exercise of remedies by
Beneficiary under the Note and/or this Deed of Trust. In no event shall
Beneficiary be precluded from exercising remedies if its security becomes
or is about to become materially jeopardized by any failure to cure a
default or the default is not cured within seven (7) days after the notice of
default is first given.
e. If a non-monetary event of default occurs under the terms of this Deed of
Trust or any of the Secured Obligations, prior to exercising any remedies
hereunder or thereunder, Beneficiary shall give Trustor notice of such
DOT (9-12-06) (2).cloc
7default. If the default is reasonably capable of being cured within thirty
(30) days, Trustor shall have such period to effect a cure prior to exercise
of remedies by the Beneficiary under the Agreement, the Guaranty, the
Note and/or this Deed of Trust. If the default is such that it is not
reasonably capable of being cured within thirty (30) days, and Trustor (i)
initiates corrective action within said period, and (ii) diligently and in good
faith works to effect a cure as soon as possible, then Trustor shall have
such additional time as is reasonably necessary to cure the default prior to
exercise of any remedies by Beneficiary. In no event shall Beneficiary be
precluded from exercising remedies if its security becomes or is about to
become materially jeopardized by any failure to cure a default or the
default is not cured within ninety (90) days after the notice of default is first
given.
f. Any period of time provided herein within which Trustor has to effect a
cure of any default hereunder shall run concurrently with any other time
period provided for the cure of such default, if any, in the Agreement, the
Note and the Guaranty.
18. Should Trustor or Participant fail to promptly commence such cure, and diligently
prosecute same to completion, after the giving of notice and the expiration of any
applicable cure period, as set forth above, Beneficiary may declare all sums
secured hereby immediately due and payable by delivery to Trustee of written
declaration of default and demand for sale, and of written notice of default and of
election to cause the Property to be sold, which notice Trustee shall cause to be
duly filed for record and Beneficiary may foreclose this Deed of Trust.
Beneficiary shall also deposit with Trustee this Deed of Trust, the Note and all
documents evidencing expenditures secured hereby.
19. After the lapse of such time as may then be required by law following the
recordation of said notice of default, and notice of sale having been given as then
required by law, Trustee, without demand on Trustor, shall sell said Property at
the time and place fixed by it in said notice of sale, either as a whole or in
separate parcels, and in such order as it may determine at public auction to the
highest bidder for cash in lawful money of the United States, payable at time of
sale. Trustee may postpone sale of all or any portion of said Property by public
announcement at the time and place of sale, and from time to time thereafter
may postpone the sale by public announcement at the time and place of sale,
and from time to time thereafter may postpone the sale by public announcement
at the time fixed by the preceding postponement. Trustee shall deliver to the
purchaser its Deed conveying the Property so sold, but without any covenant or
warranty, express or implied. The recitals in the Deed of any matters or facts
shall be conclusive proof of the truthfulness thereof. Any person, including
Trustor, Trustee or Beneficiary, may purchase at the sale. The Trustee shall
apply the proceeds of sale to payment of (1) the expenses of such sale, together
DOT (9-12-06) (2).doc
8with the reasonable expenses of this trust including therein reasonable Trustee's
fees or attorney's fees for conducting the sale, and the actual cost of publishing,
recording, mailing and posting notice of the sale; (2) the cost of any search
and/or other evidence of title procured in connection with such sale and revenue
stamps on Trustee's Deed; (3) all sums expended under the terms hereof, not
then repaid, with accrued interest at the rate specified in the Note; (4) all other
sums then secured hereby; and (5) the remainder, if any, to the person or
persons legally entitled thereto.
20. Beneficiary may from time to time substitute a successor or successors to any
Trustee named herein or acting hereunder to execute this Trust. Upon such
appointment, and without conveyance to the successor trustee, the latter shall be
vested with all title, powers, and duties conferred upon any Trustee herein
named or acting hereunder. Each such appointment and substitution shall be
made by written instrument executed by Beneficiary, containing reference to this
Deed of Trust and its place of record, which, when duly recorded in the proper
office of the county or counties in which the Property is situated, shall be
conclusive proof of proper appointment of the successor trustee.
21. 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.
22. Upon written request of Beneficiary stating that all sums secured hereby have
been paid and all obligations secured hereby have been satisfied, and upon
surrender of this Deed of Trust and the Note to Trustee for cancellation and
retention and upon payment of its fees, Trustee shall reconvey, without warranty,
the Property then held hereunder. The recitals in such reconveyance of any
matters or fact shall be conclusive proof of the truthfulness thereof. The grantee
in such reconveyance may be described as "the person or persons legally
entitled thereto."
23. The trust created hereby is irrevocable by Trustor.
24, 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 include not only the original
Beneficiary hereunder but also any future owner and holder including pledgees,
of the Note secured hereby. In this Deed of Trust, whenever the context so
requires, the masculine gender includes the feminine and/or neuter, and the
singular number includes the plural. All obligations of Trustor hereunder are joint
and several.
25. Trustee accepts this Trust when this Deed of Trust, duly executed and
acknowledged, is made public record as provided by law. Except as otherwise
DOT (9-12-06) (2).doc|10 10|35provided by law the Trustee is not obligated to notify any party hereto of pending
sale under this Deed of Trust or of any action of proceeding in which Trustor,
Beneficiary, or Trustee shall be a party unless brought by Trustee,
26. Trustor agrees at any time and from time to time upon receipt of a written request
from Beneficiary, to furnish to Beneficiary detailed statements in writing of
income, rents, profits, and operating expenses of the premises, and the names of
the occupants and tenants in possession, together with the expiration dates of
their leases and full information regarding all rental and occupancy agreements,
and the rents provided for by such leases and rental and occupancy agreements,
and such other information regarding the premises and their use as may be
requested by Beneficiary.
27. Trustor agrees that the entire principal balance of the debt secured by this Deed
of Trust shall at the option of Beneficiary be immediately due and payable upon
the occurrence of any of the events set forth in Section 8 of the Note.
28. If the rights and liens created by this Deed of Trust shall be held by a court of
competent jurisdiction to be invalid or unenforceable as to any part of the
Obligations described herein, the unsecured portion of such Obligations shall be
completely performed and paid prior to the performance and payment of the
remaining and secured portion of the Obligations, and all performance and
payments made by Trustor shall be considered to have been performed and paid
on and applied first to the complete payment of the unsecured portion of the
Obligations.
29. This Deed of Trust is and shall be subject and subordinate to
30. Except as provided in this Section 30, Beneficiary will neither seek nor obtain
judgment against the Trustor, nor any of its members, for payment of principal or
interest under the Note or for any other obligation under this Deed of Trust
following a judicial foreclosure (or to the extent permitted by law, a nonjudicial
foreclosure) of this Deed of Trust, and the Beneficiary's sole recourse against the
Trustor and its general or limited partners for any default in the payment of
principal or interest of the Agency Loan or any sums due under this Deed of
Trust shall be the exercise of its rights against the Property and any related
security for the Agency Loan. Provided, however, that the foregoing shall not (a)
constitute a waiver of any obligation evidenced by the Note or this Deed of Trust;
(b) limit the right of the Beneficiary to name Trustor as a party defendant in any
action or suit for judicial foreclosure and sale under the Note and this Deed of
Trust or any action or proceeding hereunder so long as no judgment in the nature
of a deficiency judgment shall be asked for or taken against Trustor; (c) release
or impair the Note or this Deed of Trust; (d) prevent or in any way hinder
Beneficiary from exercising, or constitute a defense, an affirmative defense, a
DOT (9-12-06) (2).doc
10counterclaim, or other basis for relief in respect of the exercise of, any other
remedy against the mortgaged Property or any other instrument securing the
Note or as prescribed by law or in equity in case of default; or (e) prevent or in
any way hinder Beneficiary from exercising, or constitute a defense, an
affirmative defense, a counterclaim, or other basis for relief in respect of the
exercise of, its remedies in respect of any deposits, insurance proceeds,
condemnation awards or other monies or other collateral or letters of credit
securing the Note. The limitation of liability set forth in this Section will not
prejudice or affect Beneficiary's right to:
a. Name the Trustor or its general partner as a party defendant in any action,
proceeding, reference or arbitration, subject to the limitations of this
Section; or
b. Assert any unpaid amounts on the Agency Loan as a defense or offset to
or against any claim or cause of action made or alleged against the
Beneficiary by Trustor, its general partner or joint venturers, or any
guarantor or indemnitor in connection with the Agency Loan;
c. Exercise self-help remedies such as set-off or nonjudicial foreclosure
against or sale of any real or personal property collateral or security; or
d. Collect or recover any damages, costs and expenses incurred by
Beneficiary as a result of fraud or any criminal act or acts of Trustor or any
partner, shareholder, officer, director or employee of Trustor or of any
general or limited partner of Trustor; or
e. Collect or recover any damages, costs and expenses incurred by
Beneficiary as a result of any misapplication of funds provided for the
construction of the Project, rents and revenues from the operation of the
Project, or proceeds of insurance policies or condemnation proceeds; or
f. Collect or recover any and all amounts owing pursuant to Trustors
indemnification regarding Hazardous Substances; or
g
- Enforce any and all of Trustors and its general partners obligation under
the Agreement and this Deed of Trust relating to preserving the condition
of the Project or the priority of the Beneficiary's interest in the Property,
including obligations to pay taxes and charges that may affect or become
a lien on the Property, to maintain the Property and all insurance in
accordance with the Agreement and this Deed of Trust, and to repay all
sums advanced by Beneficiary for any payment of taxes or insurance; or
h. Enforce any agreement of Trustor or any other party (other than this Deed
of Trust) specifically stating that it is not subject to the limitation of liability
DOT (9-12-06) (2).doc
11contained in this Section; or
i. Recover all court costs and attorneys' fees reasonably incurred in
enforcing or collecting upon any of the foregoing exceptions (provided that
Beneficiary shall pay Trustors reasonable court costs and attorneys' fees
if Trustor is the prevailing party in any such enforcement or collection
action).
IN WITNESS WHEREOF Trustor has executed this Deed of Trust as of the day
and year set forth above.
Dated:
By: Name:
Its:
DOT (9-12-06) (2).doc
12
3g,STATE OF CALIFORNIA
) ss
COUNTY OF
On , before me,
Notary Public, personally appeared
, personally known to me (or proved to me on the basis of satisfactory evidence) to be
the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
(SEAL)
Notary's Signature
39ATTACHMENT NO. 6
FORM OF GUARANTY
GUARANTY OF TENANT PARTICIPATION AGREEMENT
This GUARANTY OF TENANT PARTICIPATION AGREEMENT (this
"Guaranty") is made as of , 2006, by , a
(the "Guarantor") in favor of the Culver City
Redevelopment Agency, a public body, corporate and politic (the "Agency").
RECITALS
A. The Agency and D'Lynda Fischer (the "Participant") have entered or
will enter into that certain Tenant Participation Agreement dated
, 2006 (the "TPA"). The TPA is incorporated herein by this
reference and all capitalized terms not otherwise defined herein shall have the
meanings ascribed to such terms in the TPA.
B. Guarantor has a personal relationship with Participant, and has
agreed to enter into this Guaranty, execute a promissory note and execute a
deed of trust (the "Deed of Trust") in order to secure Participant's obligations
under the TPA.
C. Guarantor acknowledges that this Guaranty is required by the
Agency as a condition precedent and as an inducement to the Agency to enter
into the TPA to provide certain financial assistance to the Participant and carry
out various other obligations in accordance with the terms of the TPA.
NOW, THEREFORE, in consideration of the foregoing and in further
consideration of and to induce the Agency to execute the TPA and perform its
obligations under the TPA, the Guarantor does hereby irrevocably warrant,
guarantee and agree as follows:
1. Guarantor acknowledges receipt of a copy of the TPA and all of the
instruments described therein and/or attached thereto.
2. Guarantor hereby guarantees the Participant's performance and
payment obligations under the TPA, including, without limitation, repayment by
the Participant of the amount of Two Hundred Thousand Dollars ($200,000)
loaned to Participant by the Agency in accordance with the terms and provisions
of the TPA (the "Agency Loan"). Guarantor's guaranty obligations hereunder
shall not exceed the amount of the Agency Loan.
Li3. The execution by Agency of the TPA shall conclusively evidence
the reliance by the Agency upon this Guaranty and the obligations and
agreements of Guarantor as set forth herein.
4. The obligations of Guarantor shall not be discharged, impaired or
otherwise affected by (i) any sale, transfer, assignment, pledge, surrender,
indulgence, forbearance, alteration, substitution, exchange, change in,
amendment, revision, modification or other disposition of the TPA or (ii) any
failure, negligence or omission on the part of the Agency to enforce the terms of
the TPA.
5. Guarantor hereby expressly waives:
(a)
any defense based on the absence of any or all
presentments, demands for performance, notices of non-
performance, protests, notices of protests, notices of
dishonor, notices of acceptance of this Guaranty, or notices
or protests of any kind being made or given to Guarantor;
(b) all notice of any amendment or modification of the TPA
and/or Agency Loan not inconsistent with the terms of this
Guaranty;
(c) any lack of diligence by Agency against Participant;
(d) any lack of diligence in enforcement of any and all formalities
which might otherwise be legally required to charge the
Guarantor with liability except as required herewith; and
(e) Any and all benefits and defenses under California Civil
Code Sections 2809, 2810, 2819, 2839, 2845, 2850 and
under Sections 2847, 2848 and 2849 to the extent provided
herein.
6. In the event that Guarantor should fail to fully perform promptly as
herein provided, Agency shall have the following remedies:
(a) at its option and without any obligation to do so, upon prior
thirty (30) days written notice from Agency to Guarantor,
proceed to perform on behalf of Guarantor any and all of the
obligations guaranteed hereunder; and Guarantor shall,
upon demand, pay to the Agency all such sums reasonably
expended by Agency in such performance on behalf of
Guarantor; and
(b) from time to time and without requiring anything more than
notice of default to Participant and opportunity to cure theobligations guaranteed hereunder by Guarantor, to enforce
the provisions of this Guaranty by action at law or in equity
or both, and - further to collect in any such action
compensation for all loss, cost, damage, injury and expense
sustained or incurred by Agency as a consequence of
Guarantor's failure to perform the obligations guaranteed
hereunder when due hereunder.
7. This Guaranty is a guaranty of the payment and performance of the
obligations guaranteed hereunder, and Guarantor shall be strictly liable for any
claims by Agency against Guarantor with respect thereto.
8. Guarantor shall pay to the Agency, upon demand, all fees and
costs (including, without limitation, reasonable attorneys' fees and
disbursements) incurred by the Agency in instituting and/or maintaining any
action for damages or specific performance against Guarantor pursuant to the
terms of this Guaranty.
9. As of the date of execution of this Guaranty, (i) Guarantor warrants
that it has full authority to execute this Guaranty and comply with its terms, and
(ii) Guarantor declares to and covenants with Agency and its successors and
assigns, that, Guarantor knows of no defense whatsoever to any action, suit or
proceeding, at law or otherwise, that may be instituted on this Guaranty.
10. This Guaranty shall terminate upon the earlier of (i) Agency's
determination, in its sole discretion, to terminate this Guaranty, (ii) payment in full
of the Agency Loan, including accrued interest, in accordance with the TPA.
11. Each reference herein to "Agency" shall be deemed to include the
Culver City Redevelopment Agency in its capacity as Agency under the TPA, and
each of its successors and assigns; and all of the provisions of this Guaranty
shall run in favor of said named Agency, the City of Culver City, and their
respective successors and assigns.
12. This Guaranty shall be governed by and construed in accordance
with the laws of the State of California, without giving effect to the conflict of laws
principles of said state.
13. Any legal actions pursuant to this Guaranty must be instituted in the
Superior Court of the County of Los Angeles, State of California, in any other
appropriate court of that county, or in the Federal District Court in the Central
District of California.
14. In the event legal action is commenced by the Agency against the
Guarantor, service of process on the Guarantor shall be made by personal
LIZservice upon an officer of Guarantor and shall be valid whether made within or
without the State of California, or in such manner as may be provided by law.
15. Time is of the essence hereof.
16. If any term, provision, covenant or condition hereof or any
application thereof should be held by a court of competent jurisdiction to be
invalid, void or unenforceable, all terms, provisions, covenants and conditions
hereof, and all applications thereof not held invalid, void or unenforceable, shall
continue in full force and effect and shall in no way be affected, impaired or
invalidated thereby.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the
date set forth below
GUARANTOR:
LA 3ATTACHMENT NO. 5
FORM OF THIRD PARTY GUARANTY
GUARANTY OF TENANT PARTICIPATION AGREEMENT
This GUARANTY OF TENANT PARTICIPATION AGREEMENT (this
"Guaranty") is made as of , 2006, by , a
(the "Guarantor") in favor of the Culver City
Redevelopment Agency, a public body, corporate and politic (the "Agency").
RECITALS
A. The Agency and Sporteve, Inc., a California corporation (the
"Participant") have entered or will enter into that certain Tenant Participation
Agreement dated , 2006 (the "TPA"). The TPA is incorporated
herein by this reference and all capitalized terms not otherwise defined herein
shall have the meanings ascribed to such terms in the TPA.
B. Guarantor has a personal relationship with Participant, and has
agreed to enter into this Guaranty, execute a promissory note and execute a
deed of trust (the "Deed of Trust") in order to secure Participant's obligations
under the TPA.
C. Guarantor acknowledges that this Guaranty is required by the
Agency as a condition precedent and as an inducement to the Agency to enter
into the TPA to provide certain financial assistance to the Participant and carry
out various other obligations in accordance with the terms of the TPA.
NOW, THEREFORE, in consideration of the foregoing and in further
consideration of and to induce the Agency to execute the TPA and perform its
obligations under the TPA, the Guarantor does hereby irrevocably warrant,
guarantee and agree as follows:
1. Guarantor acknowledges receipt of a copy of the TPA and all of the
instruments described therein and/or attached thereto.
2. Guarantor hereby guarantees the Participant's performance and
payment obligations under the TPA, including, without limitation, repayment by
the Participant of the amount of Two Hundred Thousand Dollars ($200,000)
loaned to Participant by the Agency in accordance with the terms and provisions
of the TPA (the "Agency Loan"). Guarantor's guaranty obligations hereunder
shall not exceed the amount of the Agency Loan.
Third Party Guaranty (9-12-06) (2).doc
Page 1 of 43. The execution by Agency of the TPA shall conclusively evidence
the reliance by the Agency upon this Guaranty and the obligations and
agreements of Guarantor as set forth herein.
4. The obligations of Guarantor shall not be discharged, impaired or
otherwise affected by (i) any sale, transfer, assignment, pledge, surrender,
indulgence, forbearance, alteration, substitution, exchange, change in,
amendment, revision, modification or other disposition of the TPA or (ii) any
failure, negligence or omission on the part of the Agency to enforce the terms of
the TPA.
5. Guarantor hereby expressly waives:
(a) any defense based on the absence of any or all
presentments, demands for performance, notices of non-
performance, protests, notices of protests, notices of
dishonor, notices of acceptance of this Guaranty, or notices
or protests of any kind being made or given to Guarantor;
(b) all notice of any amendment or modification of the TPA
and/or Agency Loan not inconsistent with the terms of this
Guaranty;
(c) any lack of diligence by Agency against Participant;
(d) any lack of diligence in enforcement of any and all formalities
which might otherwise be legally required to charge the
Guarantor with liability except as required herewith; and
(e) Any and all benefits and defenses under California Civil
Code Sections 2809, 2810, 2819, 2839, 2845, 2850 and
under Sections 2847, 2848 and 2849 to the extent provided
herein.
6. In the event that Guarantor should fail to fully perform promptly as
herein provided, Agency shall have the following remedies:
(a) at its option and without any obligation to do so, upon prior
thirty (30) days written notice from Agency to Guarantor,
proceed to perform on behalf of Guarantor any and all of the
obligations guaranteed hereunder; and Guarantor shall,
upon demand, pay to the Agency all such sums reasonably
expended by Agency in such performance on behalf of
Guarantor; and
(b) from time to time and without requiring anything more than
notice of default to Participant and opportunity to cure the
Third Party Guaranty (9-12-06) (2).doc
Page 2 of 4obligations guaranteed hereunder by Guarantor, to enforce
the provisions of this Guaranty by action at law or in equity
or both, and further to collect in any such action
compensation for all loss, cost, damage, injury and expense
sustained or incurred by Agency as a consequence of
Guarantor's failure to perform the obligations guaranteed
hereunder when due hereunder.
7. This Guaranty is a guaranty of the payment and performance of the
obligations guaranteed hereunder, and Guarantor shall be strictly liable for any
claims by Agency against Guarantor with respect thereto.
8. Guarantor shall pay to the Agency, upon demand, all fees and
costs (including, without limitation, reasonable attorneys' fees and
disbursements) incurred by the Agency in instituting and/or maintaining any
action for damages or specific performance against Guarantor pursuant to the
terms of this Guaranty.
9. As of the date of execution of this Guaranty, (i) Guarantor warrants
that it has full authority to execute this Guaranty and comply with its terms, and
(ii) Guarantor declares to and covenants with Agency and its successors and
assigns, that, Guarantor knows of no defense whatsoever to any action, suit or
proceeding, at law or otherwise, that may be instituted on this Guaranty.
10. This Guaranty shall terminate upon the earlier of (i) Agency's
determination, in its sole discretion, to terminate this Guaranty, (ii) payment in full
of the Agency Loan, including accrued interest, in accordance with the TPA.
11. Each reference herein to "Agency" shall be deemed to include the
Culver City Redevelopment Agency in its capacity as Agency under the TPA, and
each of its successors and assigns; and all of the provisions of this Guaranty
shall run in favor of said named Agency, the City of Culver City, and their
respective successors and assigns.
12. This Guaranty shall be governed by and construed in accordance
with the laws of the State of California, without giving effect to the conflict of laws
principles of said state.
13. Any legal actions pursuant to this Guaranty must be instituted in the
Superior Court of the County of Los Angeles, State of California, in any other
appropriate court of that county, or in the Federal District Court in the Central
District of California.
14. In the event legal action is commenced by the Agency against the
Guarantor, service of process on the Guarantor shall be made by personal
Third Party Guaranty (9-12-06) (2).doc
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L00service upon an officer of Guarantor and shall be valid whether made within or
without the State of California, or in such manner as may be provided by law.
15. Time is of the essence hereof.
16. If any term, provision, covenant or condition hereof or any
application thereof should be held by a court of competent jurisdiction to be
invalid, void or unenforceable, all terms, provisions, covenants and conditions
hereof, and all applications thereof not held invalid, void or unenforceable, shall
continue in full force and effect and shall in no way be affected, impaired or
invalidated thereby.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the
date set forth below
GUARANTOR:
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