Loading...
HomeMy WebLinkAboutAgenda Bill 5.D-Attch2 10/18/2004r M ' L.O'AN' AGREEMENT This Loan Agreement (this "Agreement") is'entered into, effective as of '20.04: (''Effective Date.") by and, among Stephen A. Lind as Trustee of the Stephen A". Lind, `1994 Trust UIT/D August 293;_1994 and Elizabeth Dick, an,indi' prnent Camm'issionheq'i e fter,) a Borrower e Petaluma Community Deve_lovimeh (collectively (,,, g nc,y - Agency' arid' Borrower are hereinafter collectively referred to as the'"Parties:" - RECIT'ALS A. Borrower is -the owner "of fee'title to the property located at 119 Petaluma Blvd. North in the City of Petaluma, County of Sonoma,, and more particularly described in "Exhibit A attached hereto (the "P'roperty"). B. The Property''is located within the Petaluma Central Business District redevelopment project area (``Project Area"). C. The. Agency o_ perates :a Storefront Improvement Loan Program (the "Program") pursuanf,to, which th'e'Agency provides'loans for "the first-time reconstruction, rehabilitation or restoration of buildings which are located in the Project Area and which were constructed prior to 1904. D. Borrower,has requested';'and Agency iias agreed to' provide a loan (the "Loan") pursuant to the terms and conditions hereof for the,,purpose of financing the historic restoration of the buildin' - owned b g y Borrower and .loeated'on the Property in accordance with Exhibit B attached hereto (the Project"'). E. The Agency has determined that ,(i) the Property and Borrower meet the Program eligibility requirements; (ii) provision a,loan.for the Project pursuant to the termst of this Agreement is consistent with the redevelopment plan for the Project Area and is in the interests of the' health; safety and welIf re'of the residents of the Project Area and the City.of Petaluma,(".City'), and .(iii'i), the Loan Js necessary" to make the Project economically feasible. F. Co,ncurrently'herewith: ' '(i) Borrower,shall..execute a promissorynote ("Note") in th,e arnount,of ;the Loan and a,.D.eed' of. Trust,, Assignment of Rents;,, Security Agreement and Fixture Filing (''D:eed, of Tshall pro -'Vide rust") which, ovide Agency with a security interest in the Prope.rtty, and the improvemenfs,located' thereon (the. "Improveme,nts"): 'This.Agreement"the Note,'aiid the Deed of'Trust- are collectively hereinafter referred'to as the "Loan�Documen,ts." i NOWT.HEREFORE, for,good and,,,ualuable„consid,eration, the receipt and sufficiency of which are` hereby acknowledged„ the Parties hereby'agree a'§ follows. i i 2063 1 ARTICLE I • LOAN TERMS 1.1 LOAN AND NOTE. Agency:agrees to,lcan to Borrower; and Borrower agrees to borrow from and repay to Agency, ,a sum of up.to Two Hundred Thousand Dollars ($200.,0,0.0) subject to this Section 1.1..1, upon the terms and conditions and for the purposes set forth in this Agreement. The Loan shall be evidenced by the Note which shall be dated as of the Effective Date and executed by Borrower substantially in the form attached hereto as Exhibit D. Provided'that Borrower has complied with all conditions precedent to disbursement of. the Loan set forth in Section 2.3, the Loan Proceeds; shall be.disbursed in accordance with Section 2.2 hereof. Agency shall have the option to terminate this. Agreement, land shall have no obligation to fund the Loan if prior to the .closing of the Loan Borrower does not - demonstrate to the satisfaction of Agency that Borrower has funding ava'iIable for the Project in an.amount sufficient to fully finance completion of the Project, The _P, rties:agree that: (i) the Loan amount..shall be limited to One Hundred Thousand Dollars ($100;000) ("Initial Loan Amount"),, unless Borrower demonstrates to the satisfaction of Agencythat the cost of ,the: Project will exceed One *.Hundred Fifty Thousand Dollars ($15.0,000.); 00 Agency, shall disburse Loan Proceed's in, excess of One Hundred Thousand Dollars only after Borrower°provides evidence reasonably_ : �- satisfactory to Agency that Borrower has expended, on.the Project the Initi'al,,Loan Amount together with :an additional Fifty Thousand: Dollars ($50 000) from othe'r sources; and '(iii) Agency shall disburse:Loan Proceeds only for and to the extent necessary for the purposes set forth in Section 2.1. . 11:2 I'NT.EREST RATE;. PAYMENT: DATES.; MATURITY' DATE. No'Jnterest, .shall be payable �on the principal balance of the Loan except upon the occurrence of an Event of Default as specified_ in Section 2� of .the Note. The, entire outstanding principal balance of the Loan together with anyother sums due, under the Loan Documents shall be ,payable in full on the twentieth (20th) anniversary of the Effective Date (the "'Maturity, Date"). 1:3 SECURITY. ,As security'for repayrnent,of the Note, Bor.rower'shall execute the Deed of Trust in'favor of.Agency as beneficiary pursuant to which Agency shall be provided alien against the Property and.the I;rriprovernents. The Deed of Trust shall be dated as of the Effective Date, shall be substantially in the form attached hereto as Exhibit E, and shall be recorded inthe official records of Sonoma County, The,D.eed of Trust shall be a first lien -on the ,Property, and absent the written consent of Agency, may be subordinated'onl.y to the: title exceptions identified in Exhibit F or as,Agency shall approve in'writing, ("Permitted Exceptions"). Borrower agrees that the' eed of Trust shall remain a first,lien-.on the Property throughout the term of the Loan. 1.4 PREPAYME'NT,- ACCELERATION • 712063-5 ' Preb a men ` he :Note; o,r an ortion"of the o ' utstandin principal balance .due, under the Note may be prepaid at any time,yand from fi'rne to time, without penalty or premium. Any prepaymentof',principal', m`usf b' e'.,a'ccompa'n'ied by interest accrued (if any) but unpaid to the,date',of receipt,of prepayment-. Prepayments shall be applied first fo accrued but unpaid interesf (if an and then. to principal (b) Due On Sale., Unless Agency agrees' otherwise in writing, the entire unpaid principal balance; and all interestand other sums accrued under the Note shall be due and payable upon the,Transfer:aIbsent the prior written consent of Agency, of all . or any part of or interest in t_he Pro perty or the Irnpcovernents,, other than a lease of the Improvements or part thereof entered into in the ordinary course of business. "Transfer" shall include any °assign;ment;, hypothecation; mortgage, pledge, encumbrance or conveyance of this Agreement', the "Property, or the Improvements. 1.5 NONRECOURSE Except as expressly' provided ,iri' this".Section 'l .5, "Borr'ower shall have no personal liability for payrnent,of the principal, of,, or interest (:ifany) on the Note, and the sole recourse of Agency with respect to the payment of the principal of, and interest on the Note shall be to the Property ariVhe Improvements ,and any other collateral'''°held' by, Agency as security for the Note; provided however, nothing contained .in the foregoing `limitation of liability shall: , ' (A) impair the enforcement against all such security for the Loan of all the rights and remedies of the Agency underthe Deed ofTru'st and any financing statements Agency files in connection with :the Loan; as each of the foregoing may be amended, modified, or restated from time to time; (B) impair the right of Agency to bring a foreciosure'acti'on, action for,specific performance or other appropriate action or,'procee,din,g:to enable Agency to enforce and realize upon the Deed of Trust, the interest in the Property and the Improvements created thereby and any othe'r.collateral given to Agency in connection with the indebtedness evidenced by the Note, and�'to name the. Borrower as party, defendant in any such action; ' (C) be deemed, in."an.yway to`irripai'r1he right of, the,Agenc,y.to assertjhe unpaid principal am. , oun:t of the Loan as -a demand for money within the meaning of Section 431.70 of the' California Code,of Civil Procedure or any.auccessor provision the Ire`tb; (D) con;stitute a. waiver of any right: wh!,ich Agency may Piave under any bankruptcy.law to file a .claim for the full amgurifof, he, indebtedness owed to.Agency under the',Note or10 require that the. Property and`the'Improve'ments shall' continue to secure all ofthe indebtedness owed to Agency in accordance with the Note and the Deed of Trust; or (E) limit or,restrict`the,ability of Agencyto see'k'or of taro a judgmerit',against Borrower to enforce against Borrower to: 71266_-? 3 i (a) � recover under Sections.4 8;, 4.13.2 and' 4.15,hereof (,pertaining to Borrower's indemnification obligations.), or (b), recover from Borrower compensatorydamages, as well as other costs and expenses incurred by Agency(including without limitation attorneys fees and 'expenses) arising as a result of the occurrence of any of,the following: (i) any fraud or. materialmisrepresentation on the: part of the -Borrower; any authorized:representative of the Borrower i'n.connection with the request;for or creation of the'Loan, or in any Loan Document, or in, connection with any request for any action or consent by Agency in connection with the Loan; (ii) any failure to maintain insurance on the Property and Improvements as required pursuant to the Loan Documents; '(i.ii), failure ,to pay1axes, -assessments or other charges duel on the Property and Improvements; (iv)'the presence of hazardous or toxic material orwaste o_n the Property or other violation of ;the Borrower's obligations under -Section 4,13 hereof; or Section 7.11 of the Deed of Trust (pertaining to environmental matters); • (v) the occurrence of any actor omission of Borrower that:resul,ts in waste to;or,of the Property or the Improvements and which has a rnaterial adverse effect on the value 'of the Property or the, Improvements; (vi), the removal or disposal of any personal property o.r fixtures in ^violation of the Deed of Trust, (vii) the material misapplication lof the Loan -Proceeds; or (viii,) the material misapplication of the proceeds of any insurance policy or award resulting from condemnation or the exercise, of the power of eminent domain or by reason of damage; loss or destruction to any - portion of the Property or the Improvements. ARTICLE II . USE AND DISBURSEMENT OF PROCEEDS 2.1 USE OF'PROCEEDS. Borrower shall. use the, proceeds of the Loan. (" Loan .Rroceeds" `,) solely and exclusively to pay for costs' billed to Borrower by third 712663=5 4 d such other �'i'h`connec connection e,design and ,constructiona e 8,'� t" n with'th' construction Of lhe Pt.bject'an p �costs related .to theProject as AgencYmay approye in writing. 2.2 DISBURS�EM ENT --OF PROC EEDS,-. Upon satisfaction',ofthe conditions set forth, in Section 2.3,,,. 1 :at cl I ose,,of,escrow for"the: Loan, provided that, Borrower has provided Agency with.a,writt0h requisition specifying the, amount, and -use of'the requeste,d, Loan Rrocee�dslpadcompahied by copies of bil,18 and invoices from third parties and, such other documentation as Agency may reasonably require, including without limitation, evidonbO of compliance with 'a,p'pl i'ca b,.l e 'rdq'u i rem ents bf:'the Site Plan and Architecture Review Committee ("SPARC"), the .initial disbursement ofLoan Proceeds sha'll.be disbu'rsed,Jh.t0 escrow for distribution to Borrower. Subsequent -disbursements shall be -"made to Borrower no more . than _once per calendar month, upon A t f written requisitions and supporting d 6u I entati6n. as" described in g1pncy's recei,p o o m this Section. 2.3 CONDITYONS,PRE-CEDENt TO DISBURSEMENT OF!PRO.CEEDS.. Agency's obligation,to fund the Loan :anddisbursethe. proceeds thereof is conditioned upon the satisfaction of all Of the following wriditiont- (a) Borrower's delivery to Agency of each of the following documents, fully -executed and ackhbw'lpdged,,as appropriate:: (i)`tho Note; '(ii) the Deed of Trust, and -(iii) this Agreement; (b) The recordation �of the Deed of Trust in. the.Official Records of Sonoma County, subject only to Permitted Exceptions (as defined' Section 1.3);' (6) Borrower's�doliver .yJo AgenCyrof evidence reasonably satisfactory to N Agency that B6rrowerIh6s� obtained 6,11,necessary�,p" "' it (iri'01''dirig Witho limitation, orm s _ u u P ed to undertake the Project, orthat the building permits),, licenses:, and approvals ov,a.ls required of permits is Su'Ir'' g" receipt such P subject bn'ly'to such conditions,a`5A'-ehc'y shall reasonably approve; (,d) Agency and SPARC shall have appr oved'the final plans and soecif ication, s'rfbflhie. project; �,(6)Bortiower',s,,idelivery'toAgency 6f . �evideriqe,reasonably safisfattory. . to Agency as,,secured binding commitments, subject only to commercially reasonablo�c6ndifiohs 'for� all, financing necessary for'the,�'�successful completion of -the Project; toA issuance by an ins6re"r§afi.sfacfory - ency of a {erid'er's, title (f) The' 9 m policy ("Title PQI icy") for;'th,_ e benefit of'Agl,ency in th&z.., ountof the Loan, insuring that I � th,e lien of the Deed &Tr6s't ls��subject only I to Per mitted Exceptions and such other defects, co.nditibns,, encumbrances, , restrictions,easements and nd exceptions as 'Agency,may appr&Ve' in4riting and containing suchehdorsemonta"asAgency may reason8biyrequire, with th'arcoSt of such Title Policy to be,pai'd by Borrower; (g)- Borrower's delivery to the Agency of evidence of insuran.ce.cove`rage in • accordance with the requirements set forth in Exhibit, C attached hereto;' (h) Reserved. ,(i) Borrower's delivery to Agency of,,all of the following. (.a) Project budget; (U):,construction contract; (c) performance bonds or other:assu,rance,of completion reasonably acceptable to.Agency; and (d). copies of such other documents related tojhe development and financing 'of the Project as Agency mayreasonably request; and - (j) No material adverse change :as, determined by Agency in its reasonabl'e,judgment shall have occurred in the condition of the Property or fhe Improvements or in the financial orz other condition of Borrower since the date'ofahis. Agreement. 2A NO OBLIGATION TO_DISBURSE PRO.C.EEDS'UPQ'N DEFAULT. Notwithstanding .any other provision of this Agreement, the Agency s.hall'have no obligation to di.s'burse,or authorize the. disbursement�of. any portion of the Loan' Proceeds following: (i) the failure of any of Borro.wer's, representation's sand warranties to be true and correct in ;all material respects; (ii). the termination ofthis Agreement by mutual agreement of th:e Parties; or (iii) °the: conditions to disbursement of the Loan set forth .in ,Section 2.3 have not been satisfied within 180 days following the Effective Date, ,.unless an extension of such date is approved, by Agency in writing: , . ARTICLE III ' REPRESENTATIONS, WARRANTIES: AND COVENANTS 3.1 Borrower makes,thefollowing representations,'. arranties and.covenants' (a) LEGAL STATUS: AUTHORITY: _OWNERSHIP. Borrower has all requisite power and authority to undertake the Project and to execute, deliver and perform its obligations under the Loan Documents. Borrower is the: owner in fee of the Property - and the Improvements, subject only to liens, encuMb.rances,�easements, restrictions, conditions, and other matters of'record: or disclosed in' writing to Agency. (b) NO VIOLATION.. The;execution of the Loan Documents and Borrowor'.8 performance thereundee.do not,and.will not result in a breach of or constitute a default 712003-5 6 „Oil Party or by under any agreement, indenture or other instrurnent,;to which. Borrower is a which Borrower may�'be"bound. (c) AUTHIO: OR'IZATN: The Loan Documents to which Borrower is a party and the transactions contemplated thereby have each, been duly authorized by Borrower, and when executed' and delivered will 'e'acl' constitute a valid and binding obligation of Borrower, enforceable in accordance„with the respective terms thereof. (d) LITIGATION, There are.no pending,orto Borrower's knowledge, threatened actions'or'pro:ceedings' b'efo.re any';courtor administrative agency which may adversely affect the financial ;condition or operation of Borrower or Borrower's "development of the ProjectPand ownership of,;the Property'an;d the. Improvements. (e) Reserved. (f) COMPLIANCE WITH LAW1 '`Borrower.islin;;�.compli.ance in,,all material respects with all local, state and federal laws, rules, regulations, orders and decrees which are applicable to. the .Property o�10 Borrower ih„ relation ,thereto CAPPlicati'le Law”) including without limitat'io.n, all environmental, health and safety and employment laws. Borrower has-re,ceived no'notice,from-any governmental' authority regarding any' threatened or pending zoning,, building', fire, or health code violation or -violation of other ®governmental regulations concernirig,fhe 'Property that..has not been,,corrected, and no 'condition on the Property violates. any'Applicable Law. (g) ENVIRONMENTAL CONDITION: Except as disclosed in writing to City, as bthe e M e of Borrowebel ) and has has always, bef the en free ve toftHaza d`ouskn a el nag as. defined r: (o)�th thePropertyd'is is free a never been in violationof,any Enviro.nmenta'I Law (as defined•bel'ow); (ii,).there are. no buried or partially buried storage tanks locatedon the Property; (iii) .o notice, warning, notice of violation, adminis, ,complaint, j p. I or trafive:corn taint udicia[,com laint� or otherforma o „ informal notice has been issued alleging that conditions on the°Property are or have ' of Environmental La atenals the oet e' subject to y ever been in violation o w��or that the P p y is investigation. or inquiry regarding 'Hazardous M potential violation y e (' ), re is° other �gouemrneg�tal bythe of an Environmental Law; iv 'the iL no moriitorin ro ram required Ehvironrnerital Protection Agency or an'y agency concerning the . Property„ (v) no toxic or. hazardous chemicals, waste, or s_,ubstances'of an,, kind have ever been- spilled`, disposed of;' or stored on'; u"rider o:r at the :Property, wh'"ether by accident, burying, drain g holding areas, orany other means; vi the Pro , ert ahas neue ra �e in containers, tanks,, i ; 9 ( ) p y r been, used .as a' dump ao"r I'andfill; and'(vii) Borrower has disclosed to City ;all' information, records,. and..stu'dies-Jn' possession of Borrower'or. reasonabl eiva' ilable to' g y° aBorrower relating to';the P-roperty'concerning'Haza'rdous' Materials. ' . .. _ (g,), IDISOLOS:U:RE'.' 'No representy ation or war.ran t„ y rnade by Borrower in this 10,'Agre'ement'or4n"''the Loam Documents contains°any,untrue°statement;of.a''material fact or Omits'to,stafe any material fact- necessary to make: the statements therein not 712Gu3-5 7 misleading. -There is no fact known to: Borrowerwhich has or might reasonably "be anticipated to have a material adverse effect on the business,.asse.ts, financial condition of Borrower, orBorrower's ability to undertake the Project'which has not been disclosed. to Agency in writing._ ARTI:CLEIV AFFIRMATIVE COVENANTS 4.1 USE .OF FUNDS.. Borrower covenants that it shall use the Loan Proceeds solely for purpose of financing the Project in accordance with,'S'ection 2.1. 4.2 P.UNCTUAL,PAYMENT. Borrower covenants to punctually pay the p.rincip:al balance; of.the Note and interest (if. any) accrued thereon; at the times,an'd place and in the manner specified in the ,Note. 4:3. ..-,PAYMENT OF OTHERIND;EBTEDNESS. Borrower covenants to punctually pay all charges; assessments;. taxes and fees related- to the Property or the fmprouements and.to,punctually pay the.orincipal. and interest due on any other indebtedness related to the Property or the Improvements now Orhereafte,r at any time owed by the Borrower to the Agency orany other lender. 4.:4. ACC:OUNTIN'G RECORD S; PROPERTY INSPECTION. Borrower covenants to maintain accura- e' _books rand records, in accordance With standard aecounting;,pdnciples, consistently applied, and to' permit'the Agency, during business .hours'and upon reasonable notice to inspect, audit and examine such books and.:' records. with respect,to ihe;.Project, the -Property and, the Loan. and to inspect the Property,,;during normal business hours upon reasonable,.notice. 4.5 C.OMPLIANCEI/VITH LAWS. Borrower covenants to, comply wi_ .all, federal., state -'and local laws.,;,regulations, ordinances. and rules applicable to, the Property and the. Project. Without li'rniting the generality of the foregoing, :Borrower'shall comply with all applicable requirements of state and; local building codes and regulations,. and all applicable. statutes and regulations relating to accessibility for the disabled. 4.6 ,. INSURANCE: $o,rrower shall maintain and keep in force at'Borrower's expense., ins.urance.coverage with respect to tF;he Project"and-the Property.in accord_anee With the requirements.set forth in Exhibit C attached hereto and incorporated. ,herein. 4.7 FACILITIES. Borrower shall keep the Property and the Improvements, and and the personal' property used in Borrower's:op.eratiors in good repair and: condition, a.nd from , jime to .time make necessary repairs, renewals Arid re placements1hereto so thatthe Property and` Improvements. shall be preserved sand maintained. 712663-5 werahall inde nif 4.8 INDEM'N'IFI:C'ATIO'N. ' Borr`o'° m`�`�y' defend (with `counsel reasonably acce,ptable'to Agency), and hold harmless the,A,ge"ncy, the City-, and their respective elected and appointed officials officers., agenfs,, 'and employees (collectively the Indernnitees"),from and.,again'st, and shall_pa,y on demand,,,any and, all fosses, liabilities, "damages, costs,:,,claims, demands, penalti°es, fines!, orders, judgments, injunctive or other, relief, expenses and charges (including attorneys' "fees and expenses of attorneys) (coll'ectively°'Liabilities"') arising directly ' indire'ctly in any manner in connection with or'as a result of (a) any breach of Borrower's covenants under the Loan Documents, (b)' any failure of Borrower's representations and warranties to be true and correct in all material respects,.when made, (c) injury or death to persons or damage to prdperty or other loss occurring„�,oplthe,,'P roperty, whether'causedity the negligence or any other act or omission of Borrower Or. any other person or by negligent, faulty, inade uate or defective d.e ,pction' o •' q any claim; demand�or cause of,,action, tion, o or any other sigh; ; building',,,,,constr r maint condition or otherwise, or (d) r any action or other proceed ing';`'whe'ther nierit'orious,lbr°not, brought or a'sse°rted, against any Iridemnitee which relates to or arises out of the, Property; the Project, the Loan, the Loan Documents, or any'transaction contemplated thereby; or, any'failure of Borrower to comply with all applicable state; federal and .local' laws and regulations, including without limitation, applicable' pro.visi:ons of the California. Building,,Standards Code, the "Prevailing Wage Laws,,,and the Americans with Disabilities Act in connection with the ,construction or operation, of the Project;, provided that no 1nd,emnitee shall be .entitled to indemnification under this Section for matters; caused by such Indernnitee's gross The o�his, Agreement, $ f Borrower under.this Section shall negligence'or willful misconduct.,; bl,igations of survive the expiration ortermination oft th`e..making and repayment of the Loan, any release or recgnveyance'of„ hoe Deed'of Trust, :and,.;any. foreclosure proceeding, foreclosure, sale, or delivery of a deed in. lieu of foreclosure. 4.9 'NOTICE TO ,AGEN'CY. Within"three business' days after any of the following„shall occur; Borrower shall provide written notice thereof, to Agency: (1)'the occurrence of any Event of ,D'efault'he'reunder of which Borrower, acquires knowledge; name, " p' " II uninsured 'in.essy ctin the Pro dress, of Borrower;(3),:an. uni d ory,ae '` ' s affefocation, or ad 2 an change in me, id ntit gal structure, bus y rtia y los' g Property or the Improvements,through,fire, theft, liability; ,or property'darnage in excess of.an aggregate of Fifty Thousand Dollars ($56,600.); and (4) `Borrower's: receipt,of'a notice of default' under any mortgage.,or,otherfinancing document affecting,.the Property or the Improvements. 'Bo.rrower shall use best efforts io'!en'sure tt at Agency shall receive timely notice of,,and sh'all.'have a. right to cure, any Borrower default under any financing document.affe`cting.the, P'roperrty"or the Im'provoments and that provisions mandating such notice and .allowing such ;right to ,cure shall :be included. 'in all such docu:ments.. Agency shali rec '' ' �u' nd Sale g y � ord.'a Req estfor Notice'of D'e�fault'a "Borrower shall provide to Agency a copy of all notices�of default that.Borrower receives :from the holder of any 9 9 ' mortgage or otherfin'ancin :'.d'ocumenf affectin the I mp.rovements. or the Property. 4.lt TAX E's AND LIABILITIES Borrower " S AN. '� shall, pay and discharge ®when.due an ,and.all indebtedness obligations, assessments taxes including Y . g , ., g federal and state payroll and' income. taxes which ``are the obligations'of Borrower in relation to 7426s3-s 9 the Project, the Property, or the .Improvements except those that Borrower may in good faith contest or as to which a bona fide dispute may arise., provided provision is make to the aatis_faction- of Agency for -eventual. paymenf `thereof in the event that it' is found that the same is an obligation of Borrower. J, 4.11 LITIGATION. Borrower shall,,pro.vide written notice. to Agency within three business days after'Borrow.er acquires, knowledge of any litigation pending or threatened':against Borrower involving a claim'exceeding Fifty Thousand_ Dollars ($500:000). .4.12 EXPENSES OF COLLECTION ORENFORCEMENT. If at any time Borrower defaults under -any provision of the Loan 'Do cuments,'Borrower shall pay to the Agency: in addition to any other sums that may be due,.to Agency,an amount .equal to the costs and expenses (including without limitation, ,attorneys' fees and expenses) Agency incurs in .connection with the collection, enforcement, or correction of the default, and such"amounts; shall be a parLof the fnd.;ebtedness secured by the, Deed of Trust. 4.13 HAZARDOUS MATERIALS. 4.13A Covenants. Borrower shall not:cause or permit any, Hazardous Materials (as defined below) to. be brought, upon, ,kept, stored or used in, on, or ,about the Property' by ,Borrower, or the agents, employees; contractors or 'invitees of Borrower • except for.materials commonly used in construction activities similar to those related to the Project, or in the operation and maintenance of the Property and the Improvements, in, each case in .compliance. with all-,applicoble laws, and shall not cause any release,of Hazardous Materials into, onto, under orthrough th&Property. If any Hazardous. . Material is discharged; released, dumped, or spilled-i,n, on, under, or.about the�Property and results 'in any contamination of the Property or adjacent property, or otherwise results in the release or discharge of iHkardbus Materials in, on, under o.rfrom, the Property, Borrower'shall' promptly take all actions at Borrower's "sole expense as are necessary'to.complywiih all Environmental Laws ('as defined below). "Hazardous Materials" means any substance, material' or waste which is or 'becomes regulated by any federal, state or local governmental authority, ,and includes without limitation (i) petroleum or oil or gas or any direct or indirect product or. by-product thereof; (ii) asbestos 'and any'material.containing .asbestos; (iii) any substance, material Or waste regulated by or listed (directly or by reference) as a "hazardous substance`', "hazardous material", "hazardous waste", "toxic waste", "toxic pollutant' , "toxic substance", "solid waste" or "pollutant or contaminant" in or pursuant :to; or similarly identified as hazardous to human health. or, the environment in or pursuant to, the Toxic Substances Control Act., [15 U!:S:C. 2601., et seq.j!, the Comprehensive Environmental Response, -Compensation and Liability .Act [42 U,.'S..C. Section 9601,, et seq.], .the Hazardous .Materials Transportation° Authorization Act [49 .U.S.C. Section.5'101, ei segj, [ q .] the Resource Conservation and RecoveryAct 42 �U,:S°:C. 6901, of se. ;: , .the Federal Water Pollution Control Act [33 U.S.C. Section 1251], the Clean Air Act.[42 U:S.C. 7 12663-5 10 Section.7401, et.seq.], ,the California Underground Storage'of Hazardous 'Substances Act [California Health and Safety Code Section 252$Q;;, et seq], the California Hazardous Substances Account Act (California Health'.and "'Safety Code Section 25300, et seq.], the California Hazardous Waste, Act [.California. Health and Safety Code.,Section 25'100„ et seq.], the, Cal iforniaSafe' Drinking ;'Water and'' Toxic Enforcement Act [California 'Health and Safety Code Section 25249 5,, ,et seq], and the.,.POrter-Cologne Water Quality Control Act, fC-41iforni'a Water Code .Section, 13000, et'`seq.], as they ,now sexist ,or ,are hereafter-amended, together with anyr regulations promulgated thereunder; (iv) any substance, material. or waste =which. is. defined as' such or regulated by any "S,uperfund" or °Superlien" I,aw, or any Environmental Law,,or (u) any other substance, material, chemical, waste' or pollutant identified as; hazardous',& toxic and regulated und.er�any'other. federal- ,.state or local environmental law,.,including� without limitation, asbestos, polychlorinated"biphe'nyls,'petroleu_rn, natural' -,:gas and synthetic fuel products and by-products. Tnvironmental.Law" ,means -all federal, state or local .statutes;, ordinances, rules,, regulations, orders, decree'si lludgment& or common law doctrines, and provisions and conditions of permits, licenses and other operating.au,thorizations, regulating; or relating to, or imposing; liability or standards, of conduct concerning, ),pollution or;protection of the environment, including natural resources; (ii),exposure of persons; including employees and agents; to', Hazardous Materials (as- define'd, above) or other products, raw materials, chemicals or, other substances; (iii) protecticn,;of thapublic health or welfare from the effects of by=products; wastes;:, emissions; :di,scha'�rges. or releases of chemical substances from industrial or commercial activities; -(iv) the manufacture, use or introduction into commerce of �chemical�'substances, includi°n'9Vithout limitation, their manufacture,, formulation, labeling, distribution;, tran,spo,rtatiOn., handling, storage and disposal; or (iv) the u.se,,release or disposal of toxic or hazardous substances or Hazardous Materials or;the re mediation of air, surface waters, groundwaters or soil, as now or may at any later time b0 in effect; including -but not limited to the Toxic Substances Control Act [15 U.S.C. 2601, et seq.]; the Comprehensive Environmental p p p y [ o Act 49 U S.0 Sec ion 5101,e, Response, Com ensation and Liabilii Act 42, Hazardous Materials Trans � ortation Authorization [' 1, et seq.], the... Resource Conservation and.,RecoveryAct [42 U.,&C. 6901, et seq ], the Federal Water Pollution' Contro'I Act' ,33 U.S.-C. Section 1251], the Clean Air Act [42 .U.S.C.. Section 7401.,;et seq.], the,California Underground Storage of Hazardous Substances Act [Califs r'nia'°Health°sand. Safety Code. Section. et"seq.],'the 'California Hazardous Substances Account Act [California Health and Safety Code Section 25300, et seq.], the -California Hazardous Waste -Act' [Cali.f_ornia Health and Safety Code .S''ection 25100, et seq.], the California Safe Drinking Water'and Toxic,Enforcernen`tAct [California. Hearlth anb: Safety Code Section 25249:5;'et seq:], ,and the Porter -Cologne Water Quality Control Act [California Water Code',Section 13000., et seq.], as they now exist oriare,hereafter amended; together with any regulations promulgated thereunder. 4.1:3.2 1NDEM:NiIF y ICATLON. Borrpwer shall indemnify, defend (with counsel reasonably: acceptable to Agency), and hold th'e 'Indemnitees harmless from and a ainst Liabilities arisin directl: or'indirectl in an manner -connection with or as a g g. Y Y Y result .of :the,breach of Rcrrow&'s covenants set forth, in Section 4.:.13.1 or ftb. actual or alleged release or presence' of any Hazardous Mate'riols'on, under," or about the Property,,w:hether known or unknown, foreseeable or'unforeseeable, regard -less of the source of such release or when such release -occurred or such presence is discovered. The foregoing ihdemnity includes, without limitation, all costs of inves'tigatiori, assessment; containment, removal., .remedia'tion of any kind, and disposal' of such Hazardous :Matet•ials, all costs of determining whetherAhe Property is'in compliance with Environmental Laws, all costs associated with: bringing the'Property into' compliance with,,all ,applicable Environmental Laws,, and all"costs associated with claims. for damages or injury to :persons, property; or n.atu'ral resources. The indemnity described in this Section shall survive the expiration or termination of th'i's Agreement, the makin"g and. repayment of the -Loan, the,rel'ease,or reconveyance of the Deed of,Trust; and any foreclosure proceeding, foreclosure sale or delivery.of deed in lieu of foreclosure: 4.14 NO,N'-DIS.C.RUMI'NATION. Borrower covenants by and for itself, and for its. successors and assigns that there shall be no discrimination against or segregation of a personor.of 8-group of persons on accountof race, color, religion, creed;,,sex, sexual orientation?,, marital status„familial status, ,ancestry dr national origin in the sale, lease, sublease, `transfer;. use, occupancy, tenure or enjoyment of the-Propert.y,.;no:r: shall Borrower or any person claiming under or through Borrower estabiish or permit any such practice or practices ,of discrimination or segregation with reference to the. selection, .location, nurnb'er, use or occupancy of tenants, -lessees, subtenants,, sublessee.s'or vendees in the Property. 4.14.1 MANDATORY -LANGUAGE IN ALLSUYSEQUENT DEEDS, LEASES AND CONTRACTS. All deeds a leses°.or-contracts, made or entered :into by Borrower, its successors orassigns, as to any portion of the Property, the -Improvements, or the: Project, shall conteintherein the following language: (a) In Deeds: "Grantee herein covenants by, and for itself-, its successors and assigns that there shall. be no discrimination against or segregation:of:a, person -or of:a group -of persons on account,of.' 'race, color, creed, religion,. sex, marital status, national o.:rigin -ancestry; in the sale, lease; 'sublease, tra:nsfer,.use, occupancy,.'tenure or -enjoyment of .the property herein conveyed nor shall the grantee or, any' person claiming under or through the grantee establish or permit any such -practice or practices of'discri'mination or segregation with reference to the selection, location, number, use or occupancy of tenants,, lessees, subtenants, sublessees or vendees In the property herein conveyed. The foregoing covenant shall run with the land." . (b) In Leases:, Ll 712663-5 1 herein covenants .by and f °der the lessee o personal The lessee o or the lessee �and.,�lessee s heirs, representatives and assigns and a' K persons claiming, u_n'' r through the lessee that t.hyis. lease. is made subject to.`the .conditi:on that there shall' be no 'discrimina'tion. against'or'se re atio° f any person "of 'a group of g g n o �� or persons on account of race, color; creed,, religion, sex, rnarital;,status; national origin, or ancestryi"n th'.e Iea'sin si bleasin' transfe'rrin r' .use,..occu anc 'tenure or 9, g, g p y, enjoyment. of`thel Iand,;herein .leased norOPP the lessee or any person claiming under or through the'less:ee establish "or permit any'such- practice°Yor practices of discrimination or segregation with reference to1. the selection, location„ number, use -or occupancy of;tenants; lessees, sublessees',s,ubt'enants;, or vendees in the land herein leased." (c) In Contracts: "There shall be no discrimination again"st or segregation of any person or group of persons .on account, of race, ,color, creed,, religion; ,sex, marital status, national origin or ancestry. m'`the sale, lease; sublease,, transfer, use,; occupancy, tenure or enjoyment of the' property nor shall the transferee or any'person claiming under or through the transferee 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." 4.15 PREVAILIN&\AtAGES. Borrower shal['pay or shall cause Borrower's contractor and subcontractors to,,pay prevailing wages in the construction of the Project as those wages are determined pursuant to LaborGode_ Section 1720 et seq. and the regulations adopted pursuant thereto (''Prevailing Wage Laws") and shall comply or shall cause the contractor, �and.,sub,contractors to comply.with,the all other applicable provisions of the Prevailing Wage Laws. Borrower shall maintain or shall cause the contractor and subcontractors to maintain such records as,are necessary to determine if prevailing wages have been; paid as requir,'ed pursuant4b the Prevailing Wage Laws, During the,construction;of the.'P,roject Borrower shall causethe contractor to post at the Pro . ert 'the a"" ` lica'ble,' Ore.vailin rates of er diei`y' 'va es: Borrower shall; and hereby P Y PP P g' p g y agrees to,, un-Onditio`na'Ily `indemnify,;'defend (with counselacceptable to Agency), and hold harmless'the'�,,Indem'n'ifees from. and against `any:and' all Liabilities, which directly or indirectly; in whole or'in part, are; caused. by, arise from, or relate to, or are alleged to be caused by; orise,from:°;,'or•relate to the:paymentor,'requirement of payment of,prevailing wages or the requirement.of competitive .bidding, in the construction of the Project, the failure to comply wifh.an,y state or federal labor,laws,,,re'gulatio.ns:orstandards'in connection with this Agreement, including but not limited to the Prevailing, Wage Laws, or any act, or;om' iss'ion of Agency or Borrower related,16,this Agreement with" respect to the payment or r_equ,irement of payment of prevailing wages or the requirement of competitive bidding, -,whether or not any insurance policies,,,shall have been determined to be applicable, to any such" claims, demand's.,,.suits� actions, losses, liabilities, expenses, penalties-,,,fin,es;,,orders, judgments, injunctive,or other relief, costs, damages, 7d12663-5 A, 13 or administrative, enforcement or judicial proceedings.. It `is furtheragreed, that;Agency • does not, and' shawl n,bt;, waive anyri,ghts against :Borrower which it may,have.by reason ofthi's indemnity and hold harmless agreement because,of thei acceptance .by ,Agency, or the.deposit with Agency;, of any of the insurance policies described in this Agreement. The, representations, warranties and covenants, contained: in this'Section shall survive the .expiration or termination of this. Agreement, the im.aking and repayment of the Loan, any release or reconveyance of the Deed of Trust, and any foreclosure. proceeding, foreclosure sale, or delivery of a deed in lieu of foreclosure: ARTICLE V EVENTS OF DEFAULT 'The occurrence of any one or more of the f0lowing events shall constitute an event of default hereunder ("Event of.Default"): (a) If Borrower fails to pay when due the principal and interest1(if any) payable under the Npte :and such failure continues for ten (10) days afterAgency notifies Borrower' thereof in writing. (b) If, pursuant to or within the meaning of the United 'States Bankruptcy'Code.,or any other federal or state law relating to insolvency or relief of debtors (''Bankruptcy Law"), Borrower (i) commences a, voluntary ease or proceeding; (ii) consents, to the entry of.an order for relief against Borrower i,n, an involuntary case; (iii) consentsto the appointment of.a trustee, receiver, assignee, liquidator, or similar official for Borrower; (iv) makes an assignment for the benefit of its creditors; or,(v) admits in writing its inability to pay its debts as they.become'due.. (c) If a courtof competent jurisdiction enters an orderor decree under ;any Bankruptcy. Law that (i) is for relief against Borrower in an involuntary case_,, (ii.). appoints a trustee,,, receiver, assignee, liquidator or -similar official for Borrower or, substantially all of,Bo.rrower':s assets, '(iii) orders the liquidation of"Borrower, or (iv) issues,or levies,a judgment, writ, warrant of attachment or similar;process against the Property or the Project,, and in each case'the order`or.decree is not released, vacated, dismissed,or fully bonded within 60 days after its issuance. (d) If an event. of.default.has been declared by the holder:of any debt instrument secured by a mortgage or deed of trust .on the Project or Borrower's interest in the Property, and; such holder exercises a right'to declare=all amounts due'und:erthat debt instrument immediately due and payable, subject: to the expiration of any applicable, cure period -set forth in such holder's docurn`ents. (e), If the Borrower fails to maintain insurance on the. Property.and the Project as required .pursua'nt to the.,Loan :Documents, and Borrower fails to cure such default Within 15 days. 7,I2663-5 14 ;n ® w r' ri ht.to contest the following charges (f) „ Su;b�ect to B,orro e s g„ , contest 9 9 pursuant",to the Loan. Documents, 'if'the 'Borrower fails to .pay taxes or assessments due on the Property or the Project or'fails to pay any other charge ,t'hat ►-nay„result in a lien on the Property or the Project, and Borrower fa'ils to cure -such default within 15-days. (g) If any representation or warranty contained in the Loan. Documents or any certificate furnished in' co:nnectIion with the, foregoing or in.connection with any request for disbursement of Loan Proceeds proves to have been false or misleading in ,any material adverse respect when made. (h) If the Borrower defaults in the performance of any term, provision, covenant or agreement (other than:an obligation enumerated in this Article V) contained in this Agreement or in any other Loan Document,_ and unless such document specifies a shorter cure period for su=ch°default;-the default continues for ten (10) d'ays,in the event of a monetary :default or thirty(30') days in the event'of"a nonmonetary default after the date upon which Agency sh'all,have given written notice of the ,default to Borrower (or such longer -'time as'Agenlcy may agree .u.pon 'in .writing), provided that in each, case Borrower com.rnen,ces'to cure the default with.in-thirty-(30) days and thereafter prosecutes °the curing.of such default with, du.e,:dili'gence and in good faith. (i) If an Event of �Default::shall :have been declared under'any other Loan Document, subject to the expiration of any applicable cure period set forth in such documents. ARTICLE VI REMEDIES 6.1 REMEDIES. A"ND..RIGHTS U PON' DEFAU-LT. Upon the occurrence of an Event of Default and the expiration of any applicable cure period', Agency shall have all remedies :available. to it under'law o.r.equity, 'including; but not limited to the following, and Agency may, at its election, without notice to or,dernand ;u,pon Borrower, except`for notices or demands re.qu'ired.'by law or expressly required pursuant t'o!.the"Loan Documents, exercise one, or more of the following remedies: a) Accelerate and declare the balance of theNote and interest accrued thereon immpoiately due and payable; b) Seek.specific performance to enforce.the. terms of the. Loan. Documents; c) 'Foreclose on the Property pursuant to the Deed of Trust; d)'I Pursue any and all other remedies available under law to enforce the terms of the Loan Documents and Agoney's rights thereunder. '712663-5 15, 6.2 REMEDIES'CU.M.ULATIVE.:Each of the remedies provided herein is cumulative .,and not exclusive of, and shall not, prejud-ice any other remedy provided in . any.other Loan Document. The Agency may exercise from time to time any rights and 'remedies 'availablelo,lit unde,r.applicable law, in addition to.,'and not in lied of, :any rights and remedies expressly-granted_in this.Agreement or in any other'instrume.nt or notice, demand or legal process of any kind,... ARTICLE VII MISC.ELLANE.OUS, 7.1 NOTICES. Except as otherwise specified in this Agreement, all riotices to be sent pursuant,fo this Agreement shall be made in writing,.and sent to the Parties at their respective addresses specified below -or to such other add -rests, as a :Party may des-ignate by w(itten notice delivered to the other,Party in accordance with this Section. All such notices shall be sent by (a)' personal delivery, In which case notice shall be deemed delivered upon receipt; (b.) certified or- registered, mail, return receiptrequested, in which case notice' shall -be deemed delivered two (2) business days after deposit, postage prepaid in the Unified States mail; (c) nationally recognized overnight:courie.r,in which case notice shall be deemed delivered one (1) day after deposit with such courier-; or (d) facsimile transmission„ in which case notice shall be deemed, delivered on transmittal', provided that a transmission report is: generated reflecting the -accurate transmission thereof. Agency: Petaluma Community Development Commission 11 English Street Petaluma, CA 949512 Attn: Borrower: • 71 ? 663 -.s 16 7.2, COUNTERPARTS. This Agreement may be executed'in multiple counterparts each of which shall, be an original and all,of which taken together shall constitute one and the same instrument. 7:3 SEVERABIL'ITY. ' .If any term,,. provision, covenant or condition of this Agreement is held by a. court:of competent jurisdiction to be iriyalid, void or unenforceable, the rema'inde'r°of the, provisions shall continue in full force and effect unless the rights and o;bli'gations of the Parties are materially,altered or abridged by such, invalidation, voiding or unenforceability. 74 LE,GAL ACTION1S ATTORNEYS' FEES: In the. event any legal action is commenced to interpret or to enforce the terms of this Agreement or to collect.damages as a result of any breach, th"ereof,;"the Party prevailing in any, such"'acti'on shall be entitled to recover against the other, Party all: reasonable attorneys' fees and costs incurred in such action. 7.5 CAPTIONS; ;I:NTERPRETATI'.ON. The"captio.ris of1he LSections and Articles of this Agreementare..for convenience,'only and, are, not -intended to affect the interp'retat'ion or construction of'Jhe provisions herein contained. The language of this Agreement shall be construed as a whole according ,to ,its fair meaning and not strictly for or against any Party. Time is of°the essence in they performance of this Agreement. • 7.6 FURTHER ASSURANCES.. The Parties agree to execute, acknowledge 9 and deliver to the other such other -documents and instruments., and take'such other actions, as either shall reasonably request as may be necessary'to carry out the intent of this Agreement. 7.7 . PARTIES NOT'CO-VENTURERS. Nothing in'this Agreement is intended to or shall establish the Parties as ,partners, co -venturers_ ,' or prindipal and agent with one another. 7.8 GOVERNING LAWN; VENUE. This Agredme" rnt shall in all respects be construed and enforced in accordance with laws of the State of California without regard to principles of conflicts of aw ls. `The'Pa rtiies consent to "the, jurisdiction of any federal or state court in the juri'sdicti'on in which the Property is located (the "Property Jurisdiction'",),., Borrower,agrees that:any controversy, arising under or. in,;relation.to, this Agreement or, any Other Loan Document shall be litigated exclusively in courts having jurisdiction. in the P,roperty,,Ju'risdi:ction. Borrower irrey9cabl,y consents to seniice; jurisdiction,, and venue "of such courts for any such, litigation Arid waives any other venue to which.., it might be entitled,.by virtue of domicile., habitual„ residence or otherwise. D AM r 7 9,.. WAIVER; MODIFICATION AN AMENDMENT. No failure or delay onthe parto'f .he,_Agei cy in exercising any right,,.p,ower, o , emed.y hereunder shall operate as �a waiver thereof, nor shallFan:' single or partial: exercise of any.su,eh right, power, or . remedy preclude:any other or further, exercise thereof'or the exercise of any other right, power,,,o,r remedy hereunder. No mod ification,orwdiver of any provision of this 712663-5 . 17 : Agreement, nor any co.ns,ent to any departure by Borrower therefrom, 'shall in any event be:effecti.ve unless thesame shall.be in writing, and' then such waiver or�consent shall be effective only in the specific instance and for the specific purpose for which given. No notice to or demand on °the Borrower in any case shall entitle the'Borro.wer to any other or further notice or'demand insimilaror other, circumstances. No amendment to or modification of this Agreement shall be 'effective unless and untilsuch_ amendment or modification'is' in writing, ,properly approved in accordance with applicable procedures., ;and executed by the Parties. 7.10 ASSIGNMENT. This Agreement shall be'binding upon and inure'tolh_e benefit of the Parties and their respective successors and .assigns: Notwithstanding, the foregoing, Agency's, obligation to make the Loan is personal to Borrower, and shall not, be assignableby,Borrower by operation of law or othe.rwise:'absent the express. written consent of Agency,; and any,such assignment by operation of law or otherwise shall,be void. 7.1:1' - NO THIRD PARTY BENEFIGIARIES. There shall be. no third, party beneficiaries to, this Agreement 7:'12 ENTiRE.AGREEMENT EXHIBITS,. This.Agreement; together with h—e other Loan Documents,. constitutes the,. entire agreement between the Parties with respect to the. subjectmatter hereof and supersedes any and all priorior contemporaneous oral: o,r,written agreements and negoti,at'ions between the .Parties with respect.thereto. Exhibits A.through F attached hereto are incorporated herein by., reference as though fullyaet forth herein. 7..1.3 SURVIVAL. All representations made by Borrower herein and the provisions Iof Sections 4-8, 4.13.2, 4.14,.4.14.1 and. 4.1.5. hereof shall survive the expiration or termination ofthis Agreement, the making and repayment ofthe,Loan, any release or reconveyance of.th'e Dee.d,of Trust, and any foreclosure: proceeding, foreclosure sale, or delivery of .a deed in lieu of foreclosure. The representations of Borrower made herein have been or will be relied upon -by the Agency, notwithstanding any,investigation made by the Agency or on its behalf'. 7.14 AGENCY STATUS. Borrower "recogni'2es and agrees that Agency is not a. commercial lending 'institution, but a public agency exer:.cising,'its authority to protect the° public health, safety and welfare. Any,d_uties or obligations which a commercial lending institution may have to Borrower shall not apply to this transaction except as.set.forth herein and in the Loan Documents. 7.15 ACTION BY'THE AGENCY. Except as may be,otherwise specifically provided,,herein, whenever any approval, notice, direction, or consent by the: Ag;enc.y is required or permitted under this Agreement; such action shall be in writing, and such action may be �giVen, made or taken by the, Agency Executive Directoror by any person who shall have been designated by the Agency Executive Director,,=withoutfurther approval by the Agency go,Vern'ing board. Agency shall use reasonable :best efforts: to 7 1 26Gi_5 is respond to requests for any such. approval, notice, 'direction, or consent in a timely manner. 7.16 N,ON-LIAB"ILITY OF AGENCY.AND AGENCY_'OFFICIALS, EMPLOYEES "'AND AGENTS. No member, official, employee or agent of the Agency shall' be .personally liable to Borrower or any successor in `interest.to, a'ny° of the foregoing in the event of any default.o'r breach by -the Agency; or'fo'rany'arr ounf of money which may .become due to Borrower.,_or Borrower's successor in interest or for'any obligation of Agency under this.Agree'menf. 7.17 RIGHT OFACCESS.. Borrower hereby gra.nts'to Agency and_Agency's agents and employees the, right, upon reasonable notice to.,Bo.rrower of not less than two business days, to enter,upon the Property and the Improvements 'for the purpose of inspecting, examining, surveying and, reviewing the same forthe purpose of ensuring compliance with the Loan Documents. 7.18 PRORATION OF.CL'OSING COSTS., Agency and Borrower shall each Pay one-half of the costs of escrow and any recording fees applicable to the Loan Documents. 7.19 WAIVER OF TRIAL BY JURY.' BORROWER AND AGENCY EACH (A) AGREE NOT TO ELECT ATRIAL BY.JURY`�WITH, RESPECT TO ANY ISSUE ARISING OUT OF THIS NOTE; OR THE- R'EL'ATIONSHI,P'BETWE'EN THE PARTIES AS LENDER AND BORROWER THAT IS TRIABLE OF RIGHT BY A JURY, AND (B) WAIVE ANY RIGHT'TO"TRIAL BY -JURY -WITH .RE'SPECT TO SUCH ISSUE TO THE EXTENT THAT ANY SUCH RIGHT EXISTS, NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRdAL. BY JURY IS. SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND VOLUNTARILY WITH. THE BENEFIT OF COMPETENT LEGAL COUNSEL. IN WITNESS WHEREOF',., the Parties :have each caused this Agreement to be duly executed as of the date first written above. STEPHERA. LIND 1994 TRUST UMD August 29,1994 By: Stephen A. ,Lind, Trustee Elizabeth Dick 7 1 3Ga3,;; 1.9 1' AGENCY: PETALUMA.COMMUNIT'Y DEVELOPNIENTCOMMISSION Its: Executive -Director. ATTEST: Agency Secretary APPROVED AS: TO FORM: Agency Counsel Y 7.12663-5 ')Q Il . • Exhibit A PROPERTY (Attach legal description.) • 11 712663-5 Exhibit:: B PROJECT (Attach description of'rehabilitation/restoration work to be undertaken.) • Exhibit lC IN'S.URANCE REQUIREMENTS 'Unless Agency agrees otherwise in writing, Borrower s'hall,, at Borrower's sole cost and expense, during, the, ;term of,the Note date.d`� as of!t'he'-date,:,hereof,.and executed by Borrower for the be''nefit of Agency (the "Note") shall 'ke'ep and :maintain the following policies of insurance. 'Capitalized terms used without defiriition in this Exhibit C shall have' the meaning ascribed to such terms in the Loan Agreement of which this Exhibit is a part. - , u.raurn coverage b.einf dhect pflysical loss, Warning Property Insurance. Insurance for the ,risks o Agency as loss payee, with minimum: g . g I perils insured under the standard Causes of Loss --Special form (ISO Form CAP TO )-or its equivalent, covering all Improvements; all�fixtures and equi,'pment located on or in,' or constituting' a part -of, the'Property, in an amount equal to one .hundred" percent (:100%,) of,the full replacement cost of all such property. The insurance shall (a)`eo,ver explosion of steam and pressure boilers :and similar apparatus,, ifan,y, located, 'on„ the Property, and (b) ,cover floods if the Property is, in a Special' Hazard Area,' ,as determined by the Federal', Emergency Management Agency or as shown on a N`ationaFflood Insurance Program flood map. The insurance required hereunder.s''hall be in, amounts ,sufficient to'" r'event •applicable, policies, with not Borrower from becoming; a; co=insurer under;the terms of the a I more than a Ten Thousal'nd Dollars'($10;000') d,ed'uctibl:e (or'sucl-higherdeductible approved by the Agency,)„ifrorn the loss payable for any casualty: The policies of insurance carried in accordance with this .Paraq'rdph,A-,'shall`&bhtain a "replacement cost endorsement," an.,,"increased cost of construction .endorsement,".and an endorsement covering unde'rground.work, if applicable to the Project: R. Liability Insurance. -Commercial general liabilitybility insurance on an "occurrence basis" covering all, claims with respect to injuy or damage to, persons or property' occurring on, in or, about the Propeiy, br`lhe Improvements. Commencing upon the ` date of initial disbursement of Loan Proceeds and: at all times,.prior-to repayment of all sums payable;u'nd;er the lNote, th'e 1i'mits of liability un'der." this. Para"'graoh, B.°shall be not less than T_ wo Million Dollars ($2,;0'00,000), combined.,sin- 10 limit per:o,ccurrence, with a deductible n:o greater than Ten Thou.sand� Dollars (,$1'0;0.00) o;r,such, higher deductible as, may approved by Agency... Upon receipt of written demand from Agency, Borrower shall1 increaselhe'limits of liability insurance re'qui�ed hereunder to the amount commensurate with that generally carried by a majority of owners of other comparable projects in'Sonoma County.. The insurance shall also. include: (i) coverage, aganst„liability for bodily„ injury or property .damage arising, -out of the use, by or onibehalf of Borrower, of any owned, non -owned, leased or hired -automotive, equipment in the conduct of any and all operations conducted. in �'. connection with th'e Project or the Property; . 712663-5 7 i'i premises, and operations inchudin .without limitation bodily injury. 0: O P P 9, y J -ry, personal injury,. death or property damage occurring upon, in or.ab.out the Property or°the Improvements on any elevators. or any escalators `therein and on, 'in or about ,the adjoining sidewalks, streets ,and passageways; (iii) broad form property damage liability:;, (iv.). 'additional insured and primary insured.endorsements, protecting Agency. and City and.their respective.elected and appointed officials, officers, employees and agents; and (v) personal injury endorsement. C. Worker's Compensation Insurance. Worker's compensation insurance, in the amount'req,wred, under then applicable state law, covering Borrower's employees,. if .any-, at work .in,or upon the Property or engaged in services. or operations in connection. with the Project,,thoi Improvements or -the Property. Borrower shall require'that any general construction contract entered into by:Borrow r, with regard to the: Project include a contractual undertaking by the general. contractor to, provide worker',s, compensation insurancefor: its employees engaged in construction of the Project in an amount in compliance with applicable. state law. D. Cou`rse of Construction Insurance. Course, of construction insurance, naming Agency as'.Ioss payee in th"e, same amount, as required in Paragraph A abovefbr property insurance, covering all,construction activities on the Property. E. .General Insurance Provisions. All,:'poli'cies,of in surance-provided.for :'in this Exhibit shall .be provided under valid. and enforceable; policies, inauch forms, and amounts as, h:ereinbefore specified, issued by insurers, licensed to do business in the State of California (or a,pprovedto do business in California and listed, :on'the'California- Department of Insurance list of Eligible Surplu"s Lines Insurers or successor'listing) and having a rating of ANII, or better in Best Insu'ra�nce Guide or',if Best Insurance Guide is no longer in existence, .a comparable rating from a"comparablerating service. Prior to the closing of the Loan; and thereafter, not`less than thirty (301) days prior to the expiration date of each policy furnished ,pursuant`to this° Exhibit C,. Borrower -shall deliver to Agency certificates evidencing the. insurance required to be carried by Borrower under this Exhibit C. If requested by Agency, Borrower:shall deliver within fifteen (15) days*follbwing such request, ce.rtifi`ed, complete copies.of the insurance poli;cies" required hereunder. Insurance policies to be provided herein shall me'etthe following:` (a) Each policy of insurance obtained pursuant to this Agreement; other' than,workee's compensation insurance,,shall contain endorsements which— `rovide (i) a waiver by the'lnsurer of'the:r.ight of'subrogation against Agency,. Borrower or'any subtenant for negligence of.any such person, (ii) a-statement.that the insurance shall not be invalidated should any insured waive in `writing prior to the loss any or all right of recovery against any party for loss accruing to the property described in' the insurance 712663-5 24 policy, and (i_ii) a provision that no act ,or omission,; of Borrower which would, otherwise result in forfeiture or reduction'of the insuran"ce.th'erein:!p:rovid'ed shall affector limit.the obligation of the insurance corripany to pay'the amount -of any loss sustained: (b) By.endorsements,. Agency, and its elected and, appointed officials, officer, employees and agents_'sfiall``be ';namee,d s additional :insured under the policies of liability insurance and as loss payee under the property d.am'age and course of °construction insurance required ,to ,be; maintained by Borrower hereunder. (c) Each policy required hereunder shall incI6 del a Notice of Cancellation 'or Change in Coverage- Endorsement which shall provide that such policy shall not be cancelleftr materially ch.a,nged, without at.least thirty (M:) days' prior written notice by registered or certified mail to Agency. (d) All insurance policies shall provide,th,at there shall be no exclusion from coverage for cross Iiabilityamong, the listedInsure`ds. (e) Any certificate of insurance applicable .to coo' rse'of .construction insurance to be maintained shall be deposited with Agency, prior to commencement of construction. (f) Each policysh'all contain an endorsement that proves that the insurance applies separately to each insured, that is seeking coverage or against whom a claim is made, ,except with respect to the ,limits of liability. (g) -Each policy'shalk be, written -as a� primary policy not contributing with and not in excess of coverage that Agency or City'may carry. (h) 'Each policy, shall expressly provide -that neither Agency nor City shall' not be required to give notice of :accidents or claims and that neither Agency nor City shall have liability for premiums. F. Blanket Policies. Any insurance provided for in this Exhibit C may be placed by a policy.or Oolic eS,of blanket insurance; provided, however, that such policy or policies provide that. the amount of the total insurance allocatedJo the Property and,the Improvements shall be such as'to furnish protection the equivalent of separate policies in the amounts herein re°quired, and provided further that in all other respects any such policy or policies shall comply with the other provisions of, .this Exhibit. G. Waiver"of `S'ubrogation. To the extent,permitted by law and the policies of insurance required to be.,maintained hereunder, and without affecting such insurance coverage, Agency and Borrower, each waive any rightto recover against the other (a) damages for injury or death, of persons, (b) damage to� propert'y, '(c) damage to the Property or the Improvements or any part thereof, or (d) claims arising .by reason of any of the foregoing,'to the extent ttat..such damages and%or.claims are covered (and only to the extent of such"coverage) by insurance,actually carried by either Agericy,or Borrower. This provision is intended to restrict' each ,party (as permitted by law) to 712o63-5 25 ,recover against insurance -carriers to the extent of such coverage; and,,waivejully, and • fbrthe benefit of each, any, ri,"ghts.,and/o.r.clai'im5-Whidh,tnI ight give rise: to,ia right of subrogatibn in any insurance carrier. H. Corn r) I ia nce. -with, Policv'Re'auirement&. Borrower shall observe!.and comply,with the :req'uirement.&,of a)l.polibles'of public liability, -fire and other policies of,i.nsu,ra.nce at ariy time in force with. rbs prect, to the Property, and Borrower shall so perform and satisfy, the requirements of the companies nies Wri,ting"8-uch, policies that_�at all times -companies, of good standing shall'be willing to write or to continue such insurance. I. Additional Insurance. Borrower, ishall have, the right to carry y' such additional insurance'as:'Borrower may desire from ;time to time or as may be required by any mortgagee with a security interest in the Property. h • • 1 _2603 -5 Exhibit D FORM OF PROMISSORY NOTE • $ 200,000 EXHIBIT to LOAN AGREEMENT a, SECURED PROMISSORY NOTE' Petaluma, C.ahifordia 2004 FOR VALUE RECEIVED,'Stephen A. Lind, as Trustee of -the Stephen A. Lind 1994.Trust U/T/D August 29, 1994, and Elizabeth Dick-,,,i,an�individual (collectively hereinafter, "Borrower") jointly,and severally promise to pay to the°Petaluma Community Development'Cornmission ("Agency"),''inl;awful moneyof.the United, States of America, the principal sum of Two Hundred' Thousand Dollars ($20.0,000,).or so much thereof as may be advanced by Agency pursuant,to the': Loan Agreement°,referred'to below, in accordance with the terms and conditions described herein. ry Note (this ,,Not f Loan an delivered' This, Secured Promisso .,,e'„) has been executed. d pursuant to and in accordance with the terms andco,nditi'ons'o Agreement dated as of the date hereof, by and between Borrower;and.Agency (the. "Loan' Agreement"), and is subject to the terms" and conditions of the Loan Agreement, which • .are by this reference incorporated heroin and matle a part hereof. 'Capitalized terms used but not defined heroin rshaII have the meaning ascribed ,to such terms in the Loan Agreement. This Note, is secured by, a' Deed of Trust, Assign rrient,of'Rents, Security Agreement and Fixture .Fil_ing .("Deed of Trust") dated as of the date hereof, executed by Borrower for the benefit of Agency and encumbering the.p.roperty described therein. Agency shall be entitled to the benefits o'f;the security provided .by the Deed of Trust and shall have the,,right to; onforce,-the covenants and agreements contained herein, in the Deed of Trust,and the Loan Agreement. 1: PAYMENTS 1.1„ PAYMENT DATES; MATURITY DATE. The entire outstanding principal balance 'of this,, Notd;.gogother'with all .interest (if any)'"and°all other sums accrued! hereunder shall be payable rin full on the twentieth (20tr) anniversary of the date hereof ("Maturity.Date''). "°Agency's'hall'credit paynie.,nts :made Under this Note first to any unpaid late charges and„other costs and fees then due, then to_,accrued ,but unpaid interest (if any), and;ahen to .principal. " 1.2 ,D'UEON SALE:, Th:eon'tire unpaid principal balance and all sums -accrued here,und;er,;,shall,be""immediatel,y due and payable. u1ponf:'the;7ra'nsfer (as defined in Section TA of the Loan Agreement) absent Agency consent, of -all o,r any part -of th'e ,,Property or the Irnprovem,ents, or any interest therein P Y 1.3 PREPAYMENT. Borrower May,;without premium or penalty, �a,t any time and- from time to time., -prepay all or,any portion., of the outstanding principal balance due under this Note. Prepayments shall be,applied`first to any unpaid date charges and other, costs and fdes:,then due, then to accrued but unpaid interest; if, any, ,and then to principal.. In ,no event shall any amount due.unde.r this Note become, subject to. any rights: of offset; deduction or counterclaim on the'part of Borrower. 1.4 MANNER OF PAYMENT.. All payments on this Not&shall be.rnade to Agency at 11: English: Street; Petaluma, "CA .94952, or such other place:as Agency shall designate to :Borrower"in writing, or by wire transfer of immediately available :funds! to an account designated by Agency in writing. 2. DEFAULTS 2.1 EVENTS OF DEFAULT. The occurrence of any one or more, of the, following events-shall"constitute an event".of default hereunder ("Event of Default"): (a) If Borrower fails to pay when due any sum payable he.reunder°and such failure continues for -ten ,(10) days after Agency notifies Borrower thereof in writing- .(:b) If; pursuant`to or`within,the, meaning of the United States Bankruptcy Code or any other federal or state law, relating to 'insolvencyor relief of debtors ("Bankruptcy Law"), Borrower,(i) commences a voluntary case or proceeei'ng; (ii) corisents"to the entry.of an order fo.r're_lief against Borrower in. an involuntary case; (iii) consents to,the!appointment of a .trustee,. receiver, ,assi'gnee, liquidator or similar official for Borrower; (iv) makes an assignment fo"r th-e benefit of its credifors; admits in, writing "its'in'ability to.pay its debts as they become due.. (c) If a court of competent jurisdiction enters an order or.decre-e. under any. Bankruptcy Law that. (i) is for .reiie.f"aga.inst Borrower in an involuntarycase,. (ii) , . appoints a trustee, receiver, assignee, liquidator or similar official for. Borrower & substantially all of Borrower's assets, (iii), orders the liquidation of Borrower, or (iv) , issues or -levies a. judgment, writ, warrant ofattachmen'f or similar process against the Property orthe Project, and 'in Leach case the order or decree is not -released, vacated, dismissed or fully bonded- within 60 days after`its issuance. (�d) If ,an event of°default has been declared by the holder of any debt instrument secured by a fnortgage or deed°of trust on'the Project or..Borrowe.r's interest in the Property and such holder exercises a right to declare all, amounts "due under that debt instrument immediately d-ue and .payable, subject to; the expiration -',of any applicable cure period set forth in such holder's documents. (e) If the Borrower fails to maintain insurance on the Property and the Project as required pursuant io the Loan Documents and Borrower.fails to cure such default within 1'5 days. 71 2603, i 29 (f) Subject to Borrower's right to contest the -following charges- pursu_aritto the Loan D,ocumentsjf the,Borrower.fails„to.,pay taxes or assessments due on the Property or the improvements located thereon,,,'or fails to pay any other charge that may result in a lien on; the Property, and Borrower fails to cure such default within 15 days. (g) If any representation or'war"rantylcontalried° in the Loan' Documents or any certificate furnished i"n connection with the Loan Documents or in connection with any request for.disbursemeni of Loan, Proceeds proves to" have, been false or misleading in any material adverse respect when made. (h) If the Borrower defaults iQ1he performance of any term, provision, covenant or agreement (other than an obliga'tion;:enumerated in�this Section 2.1) contained in any Loan Document, :and unless such docu:mOnt specifies a shorter cure period for such default, the default"continues-faultdays in.the event of a monetary default or thirty (30')'d'ays in the, event of a n'onmoretary default after the date upon which Agency shall ,have given, written notice of the', default to. Borrower (or such longer.time as Agency may agree upon in writing); provided "that"in each case Borrower commences to;cure the,defau'ltwithin thirty,(30) days a;nd thereafter prosecutes the curing of such default-with,'due diligence and in -good faith. (i") If an • Event of De'fault.shall have) "b,eeh' declared ,under any other Loan Document subject to -,the expiration or any applicable cure period set forth in such documents. 2.2 REMEDIES': U.pon,the occurrence of an Event.ofcDefault hereunder, Agency may, at its option'(i)"bywritte'n notice to Borrower, declare the entire unpaid principal balance of this Note, together with :all accrued interest th'ereon and all sums due hereunder, immediatelydue,an"d. payable regardl'ess.of. any'prior forbearance, (ii) exercise any and all rights,,and remedies. availabl,e;to'it under applicable law, and (iii) exercise any ,and all rights ;and remedies avail'abl'a to Agency under this Note and the other Loan Documents., including without limitation.the,,right to,pursue foreclosure under the Deed.of'Trust: Borrower shall pay all reasonable costs' and' expenses'incurred by or on behalfcf Agency including,,without limitation, reasonable attorneys' fees,, incurred in con'nection..wifh Age„n'cy's e"n'forcement of this Note and -the exercise'"of,any or all of its rights and remedies ''hereunder and all such' sums, shall°be-a partI -I the indebtedness secured by th.e' Deed o'f`Trust'' °e 2.3 ' DEFAULT RATE. Upon the occurrence:'of'an, Event of Default, interest shall automatically,, be increased without notice.to the rate;of ten percent (10%) per annum (th'e °''De:fa:ult Rate"), provided however, if any "paymeent due hereunder is not paid when due;, the .Default 'Rate, shall apply commencing upon; the due date for such payment INheri,Borrower 's;,' "in:default, the Default;Rate'shall no longer apply, and the interest ,rate shall once again be the rate specified in the first paragraph of this Note. 'Nofw'ithsta;nd,in_° tfe:fo g"regoing provisions; .if,the, interest rate charged exceeds the ma xi,mum legal rate..of interest, the rate shall belhe max.im_um.rate permitted by law. u 71'2663-5 30 The TrnP osition or acceptance of the; Default Rate shall in no event constitute .a waiver of a -, default under this'Nofe.or prevent, Agency from exercising -any of its other rights or remedies. 3. MISCELLANEOUS 33:.1: - 'WAIVER. The rights and remedies of Agency under-th'is Note shall' be cumulative a.nd not alternative.. No waiver by Agency of any right or remedy ,underthis Note shall be effective .unless in �a writing, signed by Agency. Neither the failure nor any, delay in exercising any, right, power or privilege .under this Note will o.perate,,,as a wai.ver.. of suchlri.gh;f, power or privilege, and no single or partial exercise of any such right, power.or:privilege by Agency, will preclude any' other or further exercise of such right, power or privilege or the exercise of.any 'othe'r right, power or'privilege. 'To the maximum extent permitted by applica-ble Iaw ;(a) no claim or right of Agency arising out ofthis Note can be discharged :by Agency,, in, whole` or in part, by.:a, waiver or renunciation of the claim or right, unless in a writing, signed by Agency; (b:)'no waiver that, may be given by Agency will be applicable,except 'in the specific instance fog which it'is given; -and (c), no notice to or, demand on Borrower will be deemed to be ,a waiver of any Tobligation ..of Borrower or of the, fight of Agency to take further action wifhout,notice or demand as provided in this Note. 'Borrower h'erebywaives presentment, demand, protest, notices of dishonor and of protest and' all defenses and' pleas -on the -grounds of = any extension or extensions of the -tim.67 of payment or of any due date, under th'is.Note, • in -whole or in part, whether before -or after maturity and with or without notice." 32. NOTICES. Any notice required or permitted to be given hereunder shall be given in accordance with 'Section 7..1 of fhe Loan Agreement. 3.3. SEVERABILITY.' If anyprovision in this Note is held invalid, or unenforceable by any: court. Of:cornpetent jurisdiction,'the other provisions of this Note Will remain in full fo.rce.and effect. Any provision of this Note. held. invalid, or unenforceable only in'part or„degree will remain 'in full force and effect to the ex_ tent not held:ihvalid or unenforceable. 3,.4 GOVERNING LAW -VENUE. Th`i.s, Note shall be governed by the laws of the, State of California without regard to principles of conflicts of laws. All persons and entities in any. manner obligated underthis Note-conseht to the jurisdiction of any, federal or state court',in the jurisdiction in which, the Property is located (the "Property, Jurisdiction"). Borrower agrees -that`,,any controversy arising underor in relation to the Note orany other Loan Document shall be litigated 'exclusively in .the Property Jurisdiction._ The state and federa'I courts and authorities with jurisdiction ,i_n `the%Property Jurisdiction shall have.exclu`si::ve jurisdiction over all controversies which shall arise under, or in relation to the Note and any. Other Loan°Document. Borrower irrevoca,bly consentss, to Iservice, jurisdiction:; and venue of,such courts''for any such `litigation and, Waives any other venueto which it might be entitled by virtueof domicile, habitual residence or otherwise. 7,12,60-; 31 I ' 15. PARTIES IN INTEREST. This Note shall bind Borrower and its successors and,,assigns an'd""shall-accrue'to the'benefit.of Agency'and its successors and assigns. 3.6 .. SECTION''HEADUNGS, CONSTRUCTION: The headings. of 'Sections in this 'Note: are provided for convenience only and will not affect.,its, construction or 'in'te'rpretation. 3.7 RELATIONSHIP'OF THE PARTIES..The'relationship of'Rorrower and Agency under this Note, is, solely that of borrower and -lender, and the loan evidenced by this'Note and secured by the' Deed­of,eTrust will in no manner make Agency the partner or joint venturer of Borrower. 3.8 TIME IS .OF THE ESSENCE. Time is of the essence with respect to every provision of this -Note. 3.9 NONRECOURSE.. Except as exp.re.ssly,proVided in this Section 3.9, Borrower shall have no personal liability for repayment ofthis `Note, and the sole recourse of"Agency with' respect to," the repayment of t'h`'e principal "of, and interest (if any) on, the Note shall be to the Property and the' Improvements and any other collateral held by Agency as,security for ;this, Note; pro;'Vided.however, nothing contained in the foregoing limitation of liability shall: (A) impair the enforcement against all such security for the Loan of all the rights and remedies of the Agency' under the Deed of Trust and any financing statements Agency files in connection. with the Loan as each .of the foregoing may be amended, modified, or restated fromAi,me to time; (_) impair g g , y bring„a foreclosure ,action;, action for specific B Im air the right of IA enc. to performance or other appropriate action or proceeding to enable Agency to enforce and realize upon the Deed of'trust ;"the interest in the Property"created thereby and any other collateral given to Agency in connection with ,the indebtedness evidenced by this Note, and to name. the Borrower as party defendant ey in,any such action; C b,' deemed in any as a demand foernoneyfw.thin tghe mean ssert the f Se unpaid ( ) el IF right principal amount of the.�Loan' meaning o ction 431-.70 of the Californ'ia,,:Code off Civil Procedure,''"o.r any"successor provision thereto; (D') constitute a waiver"o f any right which Agency�may have, under any bankruptcy law to file 'a. claim for the full amount of the,:`i'ndebtedness owed to. Agency under this ;Note or to .re,quire,1�that.the Property :and th,e Improvements, shall to secure all .of the ;indebtedness owed to Agency' in accordance with this Note. and the Deed of Trust;, or • (E) 'li,mitl or r;,estrict the' ability of Agencytoseek.lor obtain a judgment against Borrower to enforce against Borrower'to: II ", 1 2rc,_-> 32 • (a,) recover u_nderSections 4.8, 4.,13.2 or 4.15 of the Loan Agreement :(pertaining to,B,o.rrower's indemnification obligations), or (b) recover from%Borrower compensatory damages:as well.as other costs and expenses incurred by Agency (including, without limitation attorneys fees and expenses) arising as a result of the occurrence of any of the following: (i_) 'an;y fraud, or material- misrepresentation on the Part of the .Borrower„ any authorized representative 'of Borrower ir' connection with the request for or creationof the Loa'n,, or in any Loan Document; or in connection with any request for any action or consent by Agency in connection with the Loan; F (ii) any failure to maintain -insurance on -the Property as required pursuant to the Loan Documents; (iii) failure to pay taxes, assessments or other charges_ due on.tfe Property and Improvements; (iv) the presence�of hazardous or toxic material or waste on the Property or other uiolat'ion of the Borrower's obligations -under Section 4.13 of the Loan Agreement or Section 7.11 of the Deed of Trust ('pertaining to erivironmental matters);, (v) the .occurrence of any act or omission of Borrower that results in waste to or of the Property or the Improvements and which has a material adverse effect on the value of th'e. Property or the Improvernents",11 (v`,i) the'.rernoVal 'or disposal of any personal property or fixtures in violation of the Deed of Trust; (vii,) the material misapplication of the Loan Proceeds; or (viii) the material misapplication of .th,e' proceeds of any insurance policy, or award resulting from cond'errination or the exercise of fhe power o,f eminent.domain or by reason of damage, Icss or destruction'to any portion of the. Property orthe Improvements. 4.. 'WAIVER OF'TRIAL BY'JU.RY-. BORROWER AND AGENCY'EACH (A) AGREE NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT 0.F THIS NOTE OR THE RELATIONSHIP BETWEEN THE PARTIES AS' LENDER,AND BORROWER THAT IS TRIABLE,OF'RIGHT BY A,JU;RY, AND (':B) WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE TO THE,EXTENT THAT ANY-SUCH:,RI'G'HT EXISTS NOW OR IN THE FUTURE. THIS'WAIVER OF RIGHT TO TRIAL BY..J:URY IS SEPARATELY 712663-5 33 u A GIVEN BY EACH PARTY, KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF COMPETENT"LEGA'L CQUNSEL. IN WITNESS WHEREOF, Borrower has executed and delivered this Note as of the date first written above. BORROWER SPECIMEN FORM STEPHEN A. LI'ND 1994 TRUST UITID August 29, 1994 By: Stephen A. Lind, Trustee Elizabeth Dick Approved as to form: • SPECIMEN FORM Agency Counsel 34 • 7,12663-5 Exhibit E FORM OF'D'EED OF'TRUST