1983-0907_BANK OF AMERICA_Loan Agreement•
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THIS AQUIMENT is made by the City of San Juan Capistrano, a
municipal corporation in the State of California (herein called
"Authority"), and BANG OF AMMICA NATIONAL TRIST AND SAVR%S ASSOCIATION,
a national banking association (herein called "}sank").
RECITALS
A. Authority has authorized a historial Housing Preservation
Program as part of an adopted Community Development Block Grant Program
(as may be amended and modified from time to time) hereinafter
collectively called "Program".
B. As part of Authority's implementation of Program, Authority has
requested Bank to make below-market interest rate property rehabilitation
loans ("Loans" or "Program Loans") to certain owners of residential real
property within Authority and approved by Authority as recipients of
Loans ("Applicants"). The purpose of the Loans would be the rebabilita-
tion of said real property in accordance with Program. in addition,
Authority has requested a choice of several types of Loans to Applicants.
C. To support these objectives, and based on an initial deposit of
Comity Development Block Grant funds, Bank is willing to provide
Authority and Applicants with Collateralized Loans (Part Three),Deferred
Payment Loans (Part Four), and other services at rates and terms not
available to the general public or to Authority independent of this
Agreement.
NM , ThhEREEFFORE, for and in consideration of the foregoing and the
mutual agreements made herein, and for other good and valuable
consideration, Authority and Bank agree as follows:
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I. Authority shall deposit up to $110,000 of Community Development
Block Grant rehabilitation funds available to Authority under the housing
and Comity Levelopment Acts of 1974 and 1977, as amended, as part of
this Agreement.
2. Authority's deposits of Community Development Block Grant funds
may be made in any of the following forms:
(a) A deposit to the Warehouse Account, the funds in which are
unallocated to Loans.
(b) A deposit to Collateralized Loan Account(s) which are non
interest-bearing savings accounts which subsidize Loans and
are pledged as Loan collateral.
(c) A deposit to a Collateralized Loan Account which is an
interest-bearing savings account which subsidizes Loans
10U% and is pledged as Loan collateral as described in
paragraph 11(a) (2).
(d) The purchase from Bank of time certificate(s) of deposit
from which all proceeds are allocated to future Program
Loans. Bank will pay, at Authority's election, the highest
interest rate permitted by law and this Agreement on all
accounts described above. If legal interest rate
limitations are removed, Bank will pay its highest :rate
offered to the public.
3. Authority relinquishes the use of and control over accounts
described in paragraph 2(b). These accounts will be used only for the
loan purpose described in this Agreement.
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4. Authority retains full accessibility to all deposits which are
unallocated to the existing Program loans.
5. Authority agrees all interest earnings will be paid to the
Warehouse Account and will be used in accordance with Community
Development Block Grant Regulations contained in 24 CER 570.513.(c).
(a) Authority agrees that the terms and conditions of this
Agreement are subject to the provisions governing lump -sum
drawdowns for property rehabilitation, section 570.513 of
the HM regulations on Community Development Block Grants,
24 CER Part 570.
PART TWO
APPLICATION PROCEMUES
6. At the request of Authority, Bank, through its San Juan
Capistrano Office shall consider making Loans to qualified Applicants
directed to Bank by Authority. Bank shall notify the respective
Applicant(s) in writing of any such request it receives from Authority.
The notification shall contain the following statement: "The City of San
Juan Capistrano has requested the San Juan Capistrano Office of Bank of
America National Trust and Savings Association, 31902 Del Oso, San Juan
Capistrano, CA 92675, to consider making a specific extension of credit
to you."
A qualified Applicant shall be identified by Authority or its
agents, using Authority's established standards, which must consider,
without limitation:
(a) Applicant is "the owner of record" of the property subject
to rehabilitation.
(b) Applicant has verifiable income(s) which can be used to
repay the proposed levan.
(c) Authority has determined that the proposed Loan, given
Program options available, will best serve the
rehabilitation needs of Applicant and the Program
objectives.
7. Authority shall furnish to Bank, with respect to each Loan
application as required throughout the process:
(a) an introductory letter statirYg that Authority desires Bank
to consider making a loan to Applicant,
(b) a general breakdown of the costs involved in the rehabili-
tation work to be performed on Applicant's real property,
(c) a description of the York,
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(d) an estimate of the value of the real property offered as
security for the loan;
(e) a copy of any contractor bid accepted by Applicant;
(f) a specific borrower interest rate as described in
paragraphs 9 and 11; and
(g) a statement including the name of the contractor who will
perform the rehabilitation work, and that Authority has
satisfied itself with respect to the competence and relia-
bility of the particular contractor.
8. Bank shall perform its customary credit evaluation with respect
to the Applicant, render its judgment with respect to the credit -worthi-
ness of the Applicant, and recommend appropriate Loan terms.
9. Upon completion of its credit evaluation, Bank shall furnish to
Authority copies of all income, employment and account verifications as
well as the credit report with an analysis and recommendation whether to
proceed with the Loan or not, and if to proceed:
(a) a recommendation as to use of either a Collateralized, or
Deferred Payment Loan, or some combination thereof; and
(b) an indication of which of the following Loans (for which
Bank assumkes all or part of the credit risk, as indicated
parenthetically below) Bank is willing to make to Applicant:
(1) a 4.00'/ Collateralized Loan (10% credit risk),
(2) an 8.00% Collateralized Loan (45% credit risk),
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10. After having determined the exact nature and scope of the
rehabilitation work to be performed on Applicant's real property,
Authority may request Bank to grant Applicant a Ivan, which either must
be from among those designated by Bank pursuant to paragraph 9 above or
must be a Loan pursuant to paragraph 11(a) (100 collateralized) or
paragraph 24 (Deferred Payment Loan).
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11. (a) Each Collateralized Ivan shall be supported by a non
interest-bearing deposit made by Authority to a
Collateralized Loan Account, an account that shall at all
times be at least equal to:
(1) 100% of unpaid principal for each 3.W4 Loan for which
Bank has not designated the Applicant pursuant to
paragraph 9(b) as a party to whom Bank is willing to
make a (partially) Collateralized Loan,
(2) 90°6 of unpaid principal for each 4 -UM Loan, or
(3) 55k of unpaid principal for each 8.W4 Loan.
plus, in each case, 1WI. of accrued unpaid interest.
Authority hereby assigns the Collateralized Loan Account to
secure the Collateralized Loans.
(b) Bank will recover from Authority or Applicant its actual
out-of-pocket expenses as specified for title search
reports and property appraisals required to originate
Program Loans.
12. (a) Unless Authority requests one note only, each Collatera-
lized Loan shall be,evidenced by two notes, effective in
succession, as provided herein.
(b) The note first effective shall be a short-term commercial
note, the term of which shall coincide approximately with
the rehabilitation period (althoyrh all references herein
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to the short-term commercial note are singular, a Loan
could include more than one short-term commercial note).
The term of any one short-term commercial note may not
exceed ninety (90) days, although the note may be extended,
renewed, or refinanced. The Loan proceeds thereof shall be
disbured by Bank in a number of draws, each to follow
completion of an applicable state of construction, as
certified to Bank by Authority. Interest shall accrue only
on the disbursed portion of the Loan.
(c) Promptly after Bank's disbursement of the final draw under
the short-term commercial note, that note shall be
refinanced by an installment note, as provided for at sub-
paragraph (d) below or, alternatively, as provided in Part
Four (Deferred Payment loans). At the time the short-term
commercial note is refinanced by the installment note,
Applicant may either pay Bank the accrued interest on the
short-term commercial note or may have it added to the
principal of the installment note.
(d) The term of the installment note shall be determined by
Bank for the Ivan in question, but may not exceed fifteen
(15) years, and the installment note shall be amortized in
equal monthly installments over its term. Interest will be
calculated on a simple interest basis for each installment
note.
13. With respect to Collateralized Loans:
(a) On both the short-term commercial note and the installment
note, interest and other finance charges shall be such as
to bear interst at an annual rate of 3.00%, 4.00%, 8.00%,
which shall be calculated on a simple interest basis.
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(b) The Loan shall be documented using Bank's standard forms.
(c) Both the short-term commercial note and the installment
note shall, at Bank's or Authority's option, be secured by
a deed of trust covering the real property that is the
subject of the rehabilitation for which the proceeds of the
Loan are to be used.
14. Authority shall make a relevant deposit to the Collateralized
Loan Account in the percentage of Loan amount provided for at paragraph
11, when the commercial note and deed of trust are signed by Applicant
and when interest on a short-term commercial note becomes added to the
principal of a subsequent installment note. At the end of each calendar
month ending 160 days after Authority's first deposit hereunder, Bank
shall remit to Authority the amount by which the Collateralized Loan
Account exceeds the paragraph 11 percentages of the unpaid balances of
Collateralized Loans. Funds that Bank thus remits to Authority shall be
deemed funds that Authority deposited at least lb0 days before.
15. If a Collateralized Loan remains in default for a continuous
period of ninety (90) days on account of nonpayment of any sum of money
due pursuant to the terms thereof or of any instrument or document
related thereto, Bank may withdraw from the Collateralized Loan Account,
and pay to itself, an amount equal to the then outstanding principal
balance of the loan multiplied by the same percentage as the percentage
of the Loan amount that was deposited to the Collateralized Loan Account
pursuant to paragraph 11, plus 100% of accrued unpaid interest on the
Loan through the 90th day of default. Hank shall have no recourse
against Authority or the Collateralized loan Account for any amounts in
excess of those permitted under this paragraph. Luring any ninety (90)
day default period, Bank shall perform its customary collection
procedures with respect to the loan.
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16. After a withdrawal from the Collateralized loan Account under
paragraph 10 above, in the case of a Loan for which the deposit to the
Collateralized loan Account under paragraph 11 was less than 100% of the
loan amount:
(a) Bank need not assign the deed of trust to Authority upon
completion of the withdrawal; but may, for it's own account,
exercise rights under the deed of trust to recover the remaining
outstanding and unpaid principal of the Loan plus accrued unpaid
interest thereon after the 90th day of default.
(b) At its election, Bank may assign to Authority such rights
as may be necessary for Authority to attempt to recoup any
funds withdrawn from the Collateralized loan Account in
connection with any Loan default. Authority agrees to
recoup funds, as much as possible, for the benefit of Bank
as well as itself. Funds recovered shall be credited as
follows:
(1) to withdrawals from the Collateralized Loan Account,
(2) to the costs of recovery,
(3) to Bank's Loan charge-off.
(c) If Bank subsequently recovers funds with respect to a
defaulted loan (as, for example, but without limitation, if
a voluntary sale of the property takes place), Bank shall,
after deducting the previously unreimbursed percentage of
loan loss to which Bank is entitled, plus Bank's cost of
recovery, return and pay over to Authority all amounts in
excess thereof.
17. After a withdrawal from the Collateralized Loan Account under
paragraph 15 above, in the case of a Loan for which the deposit to the
Collateralized Loan Account under pararagraph 11 was 10M of the loan
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amount, Bank shall assign the Iran to Authority, the assignment to be
accomplished by:
(a) the due endorsement by Bank to Authority of the promissory
note evidencing the Loan, without recourse or warranty, and
(b) the delivery of the promissory note and the assignment and
delivery of the deed of trust.
18. Collateralized Loans, as described in paragraph 11 through 17,
are priced on an average loan size of $6,000, which provides Authority
favorable.rates and terms based on this average Loan wluue. Since
operating costs associated with a smaller average Loan size are
significantly greater, Authority's Collateralized Loans will be analyzed
every 180 days from contract approval. Lf average $6,000 loan amounts
are not maintained, Bank may make adjustments affecting the pricing of
future activity as follows:
(a) increase borrower interest rate of new Loans,
(b) increase collateral requirements for new Loans, or
(c) assess an origination fee for new Loans.
These options are as negotiated and mutually accepted by Bank and
Authority.
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PART FOLR
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19. In the event Authority requests Bank to make a loan, the terms
of which are other than as provided in Part Three above, Bank shall
comply with Authority's request. In that case, after Bank has obtained
Applicant's note on terms Authority has requested for the Loan, Bank
shall, promptly after completion of the respective rehabilitation work,
assign the Locus to Authority according to the same procedure, and for the
same price, as would be applicable under paragraphs 15 and 16 (Part
Three) in the case of the assignment following default of a
Collateralized Loan for which the deposit to the Collateralized Loan
Account under paragraph 11 was 10M. Promptly after the assignment,
Authority shall pay to Bank a fee to cover its internal administrative
and out-of-pocket expenses, as specified by Bank, but in no event less
than THIRTY-SEVEN AND 50/100 DOLIARS ($37.50) nor more than SEVENTY-FIVE,
AM NO/100 DOLLARS ($75.00) for each Loan so made. Such fee shall be at
Authority's sole expense and shall not be recovered from Applicant(s).
20. Prior to the making of the first Deferred Payment loan,
Authority shall furnish Bank an opinion of its legal counsel.
(a) stating that Authority has established rates and terms for
its Deferred Payment Loan Program note,
(b) designating whether any Deferred Payment loan fee is a
"charge to be financed" or a "prepaid finance charge" under
Regulation Z, and
(c) that Authority has delivered this information and note to
Bank's San Juan Capistrano Office.
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PART FIVE
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21. On Authority's request, Bank shall, for its customary fees
therefore, accept for collection purposes, pursuant to Bank's then
current installment collection procedures, a Program loan that has been
transferred to Authority.
22. On Authority's request bank shall, for its customary fees there-
fore, provide foreclosure services with respect to a defaulted Program
loan that has been transferred to Authority, in which case Bank shall be
substituted for Continental Auxiliary Company/Authority as trustee under
the applicable deed of trust.
23. (a) The term of this Agreement shall mature on August 1, 1984.
This agreement may be terminated or amended by either of
the parties hereto at six (6) month intervals from August
1, 1983 provided written notice of intent is given to the
other party at least fifteen (15) days prior to the
termination date.
(b) The interest rates for the collateralized loans shall be
reviewed on February 1, 1984. Any subsequent rate
modification shall not affect Probram Loans outstanding at
the time of the modification.
(c) Any termination of this Agreement shall not affect Program
loans outstanding at the time of termination.
(d) At termination, Bank shall retain the Collateralized Loan
Account and shall remit monthly to Authority the amount by
which the Collateralized loan Account exceeds the paragraph
11 percentages of the unpaid balances of Collateralized
Loans.
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24. Bank convenants and agrees that nothing in this Agreement or any
agreement made pursuant hereto shall be deemed or construed by Bank to
make Authority a surety or guarantor of arty Loan, and that Bank's rights
with respect to a Collateralized Loan shall be limited to arose set forth
at paragraphs 16 and 17 hereof.
25. Authority and Bank shall comply with all applicable statutes and
regulations including without limitation, where applicable, the Federal
Truth in Lending Act and Regulation Z thereto, the Consumer Credit
Reporting Act, and the Equal Credit Opportunity Act and Regulation B
thereto.
26. Except as specifically required by this !Agreement, Authority
waives any right it may have to require Bank to:
(a) proceed against any Applicant or other person,
(b) proceed against or exhaust any collateral for the relevant
Loan, or
(c) pursue any other remedy in Bank's power, and waives any
defense arising by reason of any disability or other
defense of Applicant or any other person, or by reason of
the cessation from any cause whatsoever, other than full
payment, of the liability of an Applicant or any other
person. .'
27. Bank and Authority acknowledge the "Special Purpose" nature of
the Program and Program Loans. To serve this "Special Purpose", a Loan
shall be considered in default after the date of a transfer of the deed
of trust property which, according to the provisions of the note, make
the entire principal and interest of the note due and payable, regardless
of Bank's ability or inability to enforce those provisions of the note.
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28. Any communications between the parties hereto may be given by
mailing the same, postage prepaid, to Bank at its San Juan Capistrano
Office, 31902 Del Oso, San Juan Capistrano, CA 92675, and to Authority at
its Office of the City Manager, San Juan Capistrano, CA 92675, or to such
other address as either party may in writing hereafter indicate.
29. This Agreement and any agreement, document, or instrument
attached hereto or referred to herein integrate all terms and conditions
mentioned herein or incidental hereto, and supersede all oral
negotiations and prior writing in respect to the subject matter hereof.
In the event of any conflict between the terms, conditions, and
provisions of this Agreement and any such agreement, document, or
instrument, the terms, conditions, and provisions of this Agreement shall
prevail.
30. Authority shall indemnify and hold harmless Bank against all
claims and damages, alleged or otherwise, of whatsoever nature arising
out of or in any way connected with the acts or omissions of any
contractor performing rehabilitation work in connection with this
Agreement, provided, however, that Authority's obligations under this
paragraph shall not extend to negligent or willful acts or omissions by
Bank. All contractors shall operate as independent contractors and
nothing herein is intended to affect such independent contractor status.
31. Bank may, at its option, decline to make additional Loans from
and after the date when the principal balance of all Ivan outstanding
has exceeded SEVEN HUURED FIM TKIISAND DOLLARS ($750,000) .
32. This Agreement may be executed in as many counterparts as may be
deemed convenient, each of which, when executed, shall be deemed an
original.
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33. The operating aspects of this Agreement, including but not
limited to target area boundaries, may be altered from time to time
through a letter of understanding, accepted mutually by Authority's
Mayor and Bank's Community Development Department, Los Angeles,
California.
Dated this day of
CITY SANz,4AAN CAPISTI t'W BANK OF AMERICA NATIaW , TR
U,
Ti
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Title: VICE
1983.
AND
APPRU%TM AS TO EUt: Attached is a true and correct copy
of the extract of Council Minutes.
** See Extract of Council Minutes
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