HomeMy WebLinkAbout00501C - CDLAC APPLICATION AND PERFORMANCE DEPOSIT LINC HOUSING CORP TAHQUITZ COURT APARTMENTS DOC #2012-0166753
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FIRST AiMERICAM TITLE INSURANCE COMPANY Recorded Official Records
County of Riverside
Larry W.Ward
FREE RECORDING REQUESTED BY Assessor, County Gerk&Recorder
AND WHEN RECORDED MAIL TO:
City Clerk "This document was electronically submitted
City of Palm Springs to the County of Riverside for recording"
Box 2743 Receipted by: TVERBA
Palm Springs, CA 92263
SECOND MODIFICATION OF REGULATORY AGREEMENT
THIS SECOND MODIFICATION OF REGULATORY AGREEMENT
("Modification") is made as of this loth day of April, 2012 by and among THE HOUSING
AUTHORITY OF THE CITY OF PALM SPRINGS, a housing authority of the State of
California duly organized and existing under the laws thereof("Authority"), and TAHQUITZ
ASSOCIATES, LP, a California limited partnership ("Tahquitz").
RECITALS
A. Authority, Corporate Fund for Housing, a California nonprofit public benefit
corporation, predecessor to Tahquitz ("CFH"), and Seattle-First National Bank, as trustee, were
parties to that certain Regulatory Agreement and Declaration of Restrictive Covenants
("Regulatory Agreement") dated September 1, 1993, recorded September 30, 1993, in the
Official Records of Riverside County, California as Instrument No. 382200, affecting certain real
property then owned by CFH located in the City of Palm Springs, County of Riverside, State of
California more particularly described in Exhibit A attached hereto and incorporated herein by
reference ("Property"). The Regulatory Agreement was executed in connection with the
issuance of$3,380,000.00 Housing Authority of the City of Palm Springs Multifamily Housing
Mortgage Revenue Bonds (Tahquitz Court Apartments) ("Bonds"), and provides for certain
terms, conditions, covenants and restrictions relating to a low income multi-family housing
project located on the Property.
B. The Bonds have been redeemed and paid in full, and as of the date hereof no
Bonds are outstanding.
C. On December 15, 2008, CFH transferred the Project (as defined in the Regulatory
Agreement) to Tahquitz and Tahquitz obtained financing from Capmark Bank ("Capmark") in
the amount of $4,326,000.00 ("Prior Loan"). The Authority approved the Prior Loan, as
evidenced by a Modification of Regulatory Agreement dated December 15, 2008 and recorded in
the Land Records of Riverside County, California as Document 2008-0663040 ("First
Modification"). The First Modification included a "Freddie Mac Rider" attached to the First
Modification as Exhibit A.
D. Berkadia Commercial Mortgage LLC ("Lender"), successor to Capmark, is now
refinancing the Prior Loan with a loan of approximately $5,670,000.00 (the "Refinance Loan").
Lender is unable to make the Refinance Loan without the Authority's consent to a second
modification of the Regulatory Agreement to incorporate the terms of the Revised Freddie Mac
Rider attached hereto.
E. The Authority has approved a second modification of the Regulatory Agreement
to incorporate the terms of the Revised Freddie Mac Rider attached hereto.
5i► i-d-Y Liz
FIRST AMERICAN TITLE INSURANCE COMPANY
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City Clerk
City of Palm Springs
Box 2743
Palm Springs, CA 92263
SECOND MODIFICATION OF REGULATORY AGREEMENT
THIS SECOND MODIFICATION OF REGULATORY AGREEMENT
("Modification') is made as of this loth day of April, 2012 by and among THE HOUSING
AUTHORITY OF THE CITY OF PALM SPRINGS, a housing authority of the State of
California duly organized and existing under the laws thereof ("Authority"), and TAHQUITZ
ASSOCIATES, LP, a California limited partnership ("Tahquitz").
RECITALS
A. Authority, Corporate Fund for Housing, a California nonprofit public benefit
corporation, predecessor to Tahquitz ("CFH"), and Seattle-First National Bank, as trustee, were
parties to that certain Regulatory Agreement and Declaration of Restrictive Covenants
("Regulatory Agreement") dated September 1, 1993, recorded September 30, 1993, in the
Official Records of Riverside County, California as Instrument No. 382200, affecting certain real
property then owned by CFH located in the City of Palm Springs, County of Riverside, State of
California more particularly described in Exhibit A attached hereto and incorporated herein by
reference ("Property"). The Regulatory Agreement was executed in connection with the
issuance of$3,380,000.00 Housing Authority of the City of Palm Springs Multifamily Housing
Mortgage Revenue Bonds (Tahquitz Court Apartments) ("Bonds"), and provides for certain
terms, conditions, covenants and restrictions relating to a low income multi-family housing
project located on the Property.
B. The Bonds have been redeemed and paid in full, and as of the date hereof no
Bonds are outstanding.
C. On December 15, 2008, CFH transferred the Project (as defined in the Regulatory
Agreement) to Tahquitz and Tahquitz obtained financing from Capmark Bank ("Capmark") in
the amount of $4,326,000.00 ("Prior Loan"). The Authority approved the Prior Loan, as
evidenced by a Modification of Regulatory Agreement dated December 15, 2008 and recorded in
the Land Records of Riverside County, California as Document 2008-0663040 ("First
Modification"). The First Modification included a "Freddie Mac Rider" attached to the First
Modification as Exhibit A.
D. Berkadia Commercial Mortgage LLC ("Lender"), successor to Capmark, is now
refinancing the Prior Loan with a loan of approximately $5,670,000.00 (the "Refinance Loan").
Lender is unable to make the Refinance Loan without the Authority's consent to a second
modification of the Regulatory Agreement to incorporate the terms of the Revised Freddie Mac
Rider attached hereto.
E. The Authority has approved a second modification of the Regulatory Agreement
to incorporate the terms of the Revised Freddie Mac Rider attached hereto.
S i 1 S',�c�4-et
NOW, THEREFORE, Authority and Tahquitz declare, covenant and agree, in
consideration of the mutual promises contained herein, and for other good and valuable
consideration, as follows.
1. The Regulatory Agreement is amended to incorporate the terms and conditions of
the Revised Freddie Mac Rider attached hereto.
2. Except as otherwise provided herein, the Regulatory Agreement shall be and
remain unmodified and in full force and effect.
3. This Modification may be executed in any number of counterparts each of which
shall be an original but all of which shall constitute one and the same document.
[SIGNATURES FOLLOW]
Second Modification of Regulatory Agreement—Housing Authority
2
IN WITNESS WHEREOF, the parties have executed this Modification of Regulatory
Agreement as of the date first above written.
AUTHORITY:
ATTEST: HOUSING AUTHORITY OF THE CITY
OF PALM SPRINGS
By: By.
Its:
APPROVED BY CITY COUNCIL
APPROVED AS TO FORM:
By.
Title: L
Second Modification of Regulatory Agreement—Housing Authority
3
ACKNOWLEDGMENT OF INSTRUMENT
(Cal. Civil Code Section 1181)
State of California )
County of Riverside ) ss
City of Palm Springs)
On April 9, 2012, before me, KATHLEEN D. HART, CHIEF DEPUTY CITY
CLERK, CITY OF PALM SPRINGS, CALIFORNIA, personally appeared DAVID H.
READY, who I personally know is the CITY MANAGER of the CITY OF PALM
SPRINGS, whose name is subscribed to the within instrument and that he executed the
same in his official and authorized capacity on behalf of the City of Palm Springs, a
California Charter City.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
Witness my hand and the official seal of the City of Palm Springs, California, this
9th day of April 2012:
ALM Sp9
iy
c
V N
1 Signature: Lc.---�� 1 \� Ott
Kathleen D. Hart, CMC
Chief Deputy City Clerk
CITY OF PALM SPRINGS, CALIFORNIA
Title or Type of Document: be(ond
Document Date: ` �0 �01� Number of Pages:
3A
TAHQUITZ:
TAHQUITZ ASSOCIATES,LP, a California
limited partnership
By: LINC-Tahquitz LLC, a California limited
liability company, its Managing General
Partner
By: LINC Housing Corporation, a California
nonprofit public benefit corporation, its
Sole Member and Manager
By:
"Karen N. ae ima
Co-COO 0d C
By: Tahquitz Associates, LLC, a California
limited liability company, its Co-General
Partner
By: Dalton Hydro, LLC, a Vermont limited
liability company, its Manager
By: S.R.C. Corp., a Utah corporation,
its Manager
By:
Stephen Harmsen
Manager
Second Modification of Regulatory Agreement—Housing Authority
4
TAHQUITZ:
TAHQUITZ ASSOCIATES,LP, a California
limited partnership
By: LINC-Tahquitz LLC, a California limited
liability company,its Managing General
Partner
By: LINC Housing Corporation, a California
nonprofit public benefit corporation,its
Sole Member and Manager
By:
Karen N. Maes ' a
Co-COO and CFO
By: Tahquitz Associates, I.LC,a California
limited liability company, its Co-General
Partner
By: Dalton Hydro, LLC, a Vermont limited
liability company,its Manager
By: S.R.C. Corp., a Utah corporation,
its Manager
By. ZIX
tep en Harmsen
Manager
Second Modification of Regulatory Agreement—Housing Authority
4
ACKNOWLEDGMENT
State of C 11.1t)(01a
County of LOS r^ c- S I
On t7Qf 'o-5,„Z®f before me, 7/anwo L. Sp A, fi1 (1 a Eq 1 U
(insert Name and Title of th fficer)
personally appeared Karen N. Maeshima , who proved to me on the basis
of satisfactory evidence to be the persono whose name(s) is/ subscribed to the within
instrument and acknowledged to me that X/she/)hey' executed the same in WlherWir
authorized capacity(ips), and that by his//her/tlhai(`signature,(s'} on the instrument the personJ4, or
the entity upon behalf of which the persot#acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is hue and correct. '62'TAMMY L.sralTN
WITNESS my hand and official seal. Commission 0 1800366Notary Public-California
Los Angeles County
/ M Comm. Expires Jun 3,2012
Signature (Seal)
VHarnmns
T
State of
County of
On
Name and Title of the Officer)
personally appeared Stephen , who proved to me on the basis
of satisfactory evidence to be the persons) ho name(s) is/are subscribed to the within
instrument and acknowledged to me that e/she ey executed the same in his/her/their
authorized capacity(ies), and that by his/her/t it signa e(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) cted, exec ed the instrument.
I certify under PENALTY OF PERJURY der the laws f the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
Second Modification of Regulatory Agreement—Housing Authority
5
AC OWLED MENT
State of
County of
On before me,
qnsert Nam and Title o Officer)
personally appeared Karen N. es
who proved to me on the basis
of satisfactory evidence to be the person( whose ame(s) is/are subscribed to the within
instrument and acknowledged to me he/she/th executed the same in his/her/their
authorized capacity(ies), and that by hi their signatur ) on the instrument the person(s), or
the entity upon behalf of which the person ) acted,execut a instrument.
I certify under PENALTY OF PE under the laws o e State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
ACKNOWLEDGMENT
State of i tk,.
Countyof A,.tx'3u'—
On apj,R 3,g o i before me, se
erneand I'Me of the Officer)
personally appeared Stephen M.Harmsen who proved to me on the basis
of satisfactory evidence to be the person(s) whose name(s) is/am subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)acted,executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ,.
r — — — — — —NOTMY PUBM 1
second Modification of Regulatory Agreement—Houamg Authority ( CprynlNbn No.GUM �
5 t
I ... ' OCTSTATEOF t
L— — — — — — — — — — ———-
NOTARY SEAL
Under the provisions of Government Code 27361 .7, 1 certify
under the penalty of perjury that the Notary Seal on the
document to which this statement is attached reads as
follows:
Name of Notary: veho -j-. 1. ay i S
Commission #: (0 1 2 ?Q
Date Commission Expires: 10 - 9 -1(�
County where Bond is filed
PLACE OF EXECUTION: San Bernardino
DATE: LJ — I
SIGNATURE:
EXHIBIT A
LEGAL DESCRIPTION
LOT 15 IN SECTION 13, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO MERIDIAN,
AS PER MAP OF PALM VALLEY COLONY LANDS, IN THE CITY OF PALM SPRINGS, COUNTY OF
RIVERSIDE, STATE OF CALIFORNIA, RECORDED IN BOOK 14, PAGE 652 OF MAPS, SAN DIEGO
COUNTY RECORDS.
EXCEPT THE PORTION LYING NORTH OF THE SOUTH LINE OF ENCHANTED HOMES UNIT NO.
1, RECORDED IN BOOK 34, PAGE 17 OF MAPS, RIVERSIDE COUNTY RECORDS.
SAID PROPERTY IS SHOWN ON RECORD OF SURVEY ENTITLED 'RECORD OF SURVEY OF A
PORTION OF LOT 1 OF SECTION 13, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO
MERIDIAN, AS SHOWN BY MAP OF PALM VALLEY COLONY LANDS, AS RECORDED IN BOOK
14, PAGE 652 OF MAPS, SAN DIEGO COUNTY RECORDS" ON FILE IN BOOK 33, PAGE 77,
RECORDS OF SURVEY, RIVERSIDE COUNTY RECORDS.
APN: 502-143-004-5
Second Modification of Regulatory Agreement—Housing Authority
6
REVISED FREDDIE MAC RIDER TO REGULATORY AGREEMENT
REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
THIS REVISED FREDDIE MAC RIDER TO REGULATORY AGREEMENT
AND DECLARATION OF RESTRICTIVE COVENANTS ("Rider"), executed as of
April 10, 2012 is deemed attached to and to form a part of the Regulatory Agreement and
Declaration of Restrictive Covenants (the "Regulatory Agreement'), dated as of September 1,
1993, as amended, by and between TAHQUITZ ASSOCIATES, LP, a California limited
partnership, as successor to Corporate Fund For Housing, a California nonprofit public benefit
corporation ("Owner"), its successors and assigns, and THE HOUSING AUTHORITY OF
THE CITY OF PALM SPRINGS, a housing authority of the State of California("Authority").
1. Definitions. All capitalized terms used in this Rider have the meanings given to
those terms in the Regulatory Agreement.
2. Applicability. This Rider shall amend and supplement the Regulatory
Agreement. In the event any provision of this Rider conflicts with the Regulatory
Agreement, the Rider shall supersede the conflicting provision of the Regulatory
Agreement. This Rider shall apply in spite of the fact that the covenants,
reservations and restrictions of the Regulatory Agreement run with the land and
shall be deemed applicable to any successor in interest to the Owner.
3. Obligations Not Secured by the Project. The payment and performance
obligations of the Owner and any subsequent owner of the Project under the
Regulatory Agreement shall not be secured by or constitute a security interest in
the Project. The occurrence of an event of default under the Regulatory
Agreement shall not defeat or render invalid the lien of the Multifamily Deed of
Trust, Assignment of Rents, Security Agreement and Fixture Filing executed by
the Owner for the benefit of Berkadia Commercial Mortgage LLC ("Berkadia"),
dated as of April 10, 2012 ("Security Instrument'), as assigned of even date
therewith from Berkadia to the Federal Home Loan Mortgage Corporation
("Freddie Mac"). For purposes of this Rider, Berkadia and Freddie Mac and
their successors and/or assigns, individually and together, are "Lender".
4. Obligations Personal. The Authority agrees that no owner of the Project
(including Lender) subsequent to the Owner will be liable for, assume or take title
to the Project subject to:
(a) any failure of any prior owner of the Project to perform or observe any
representation or warranty, affirmative or negative covenant or other
agreement or undertaking under the Regulatory Agreement; and
(b) the payment of any compensation or any accrued unpaid fees, costs,
expenses or penalties otherwise owed by any prior owner of the Project
under the Regulatory Agreement.
The Owner and each subsequent owner of the Project shall be responsible under
the Regulatory Agreement only for its own acts and omissions occurring during
the period of its ownership of the Project. All such liability and obligations shall
be and remain personal to such person even after such person ceases to be the
owner of the Project.
Second Modification of Regulatory Agreement—Housing Authority—Freddie Mac Rider 1
5. Foreclosure/Deed in Lieu of Foreclosure. All provisions of Section 15 of the
Regulatory Agreement related to the sale or transfer of the Project which require
the consent of the Authority or transfer agreements, compliance with Authority
transferee criteria and requirements, opinion requirements, assumption fees,
transfer fees, shall not apply to any transfer of title to the Project to Lender and/or
a nominee thereof by foreclosure or deed in lieu of foreclosure or to any third
party purchaser from Lender and/or a nominee thereof at or subsequent to
foreclosure or deed in lieu of foreclosure, and there shall be no reversion of title to
Owner by reason of any such transfer. Nothing contained in the Regulatory
Agreement shall affect any provision of the Security Instrument or any of the
other Loan Documents (as defined in the Loan Agreement secured by the Security
Instrument) which requires the Owner to obtain the consent of Lender as a
precondition to sale, transfer or other disposition of, or any direct or indirect
interest in, the Project or of any direct or indirect interest in the Owner. No
covenant obligating the Owner to obtain an agreement from any transferee to
abide by all requirements and restrictions of the Regulatory Agreement shall
apply to a transfer to Lender and/or a nominee thereof upon foreclosure or deed in
lieu of foreclosure.
For purposes of Section 16 of the Regulatory Agreement, a foreclosure or
delivery of a deed in lieu of foreclosure under the Security Instrument shall be
deemed a foreclosure of the lien of the "Credit Bank" and "Project Mortgage"
such that the terms of the Regulatory Agreement shall terminate and be of no
further force and effect.
6. Damage, Destruction or Condemnation of the Project. In the event that the
Project is damaged or destroyed or title to the Project, or any part thereof, is taken
through the exercise or the threat of the exercise of the power of eminent domain,
the Owner shall comply with all applicable requirements of the Loan Agreement
and Security Instrument and the applicable requirements of the Loan Agreement
and Security Instrument shall control over any conflicting provision of the
Regulatory Agreement. In furtherance, and not in limitation of the foregoing,
Lender shall have the sole right to determine, in accordance with the standards set
forth in the Loan Agreement and Security Instrument, whether insurance or
condemnation proceeds are to be applied to restore the Project (and to approve the
plans and specifications in connection with any such restoration) or to prepay
indebtedness.
7. Regulatory Agreement Default. Notwithstanding anything contained in the
Regulatory Agreement to the contrary:
a. The occurrence of an Event of Default under the Regulatory Agreement
shall not defeat or render invalid the lien of the Security Instrument.
b. The occurrence of an Event of Default under the Regulatory Agreement
shall not be or be deemed to be a default under the Loan Documents,
except as may be otherwise specified in the Loan Documents.
8. Rider Provisions Control. The provisions of this Rider shall govern and control
with respect to the matters set forth herein, regardless of whether, pursuant to
Section 29 of the Regulatory Agreement, the rent and income restrictions of the
"Agency Regulatory Agreement" defined in Section 29 control due to an
inconsistency between the two Agreements.
Second Modification of Regulatory Agreement—Housing Authority—Freddie Mac Rider 2
3 , DOC # 2012-0166755
04/12/2012 10:38 AM Fees: $0.00
Page 1 of 22
Recorded in Official Records
County of Riverside
RECORDING REQUESTED BY Larry W.Ward
Assessor, County Clerk& Recorder
FIRST AMERICAN TITLE INSURANCE COMPANY
AND WHEN RECORDED MAIL TO: "This document was electronically submitted
to the County of Riverside for recording"
Receipted by:TVERBA
City of Palm Springs
P.O. BOX 2743
PALM SPRINGS,CA 92263
SUBORDINATION AGREEMENT
511524-LA2
RECORDING REQUESTED BY
FIRST AMERICAN TITLE INSURANCE COMPANY
AND WHEN RECORDED MAIL TO:
City of Palm Springs
P.O. BOX 2743
PALM SPRINGS,CA 92263
SUBORDINATION AGREEMENT
511524-LA2
Freddie Mac Loan Number: 948842776
Property Name: Tahquitz Court Apartments
SUBORDINATION AGREEMENT
(CME AND PORTFOLIO)
GOVERNMENTAL ENTITY
(Revised 11-11-2011)
THIS SUBORDINATION AGREEMENT ("Agreement") is entered into as of this 10th day of
April, 2012, by and between (i) BERKADIA COMMERCIAL MORTAGE LLC, a limited
liability company organized and existing under the laws of the State of Delaware ("Senior
Mortgagee"), and (ii) THE CITY OF PALM SPRINGS, a charter city duly organized and
existing under the laws of the State of California, successor to The Community Redevelopment
Agency of the City of Palm Springs, California("Subordinate Mortgagee").
RECITALS
A. Tahquitz Associates, LP, a California limited partnership ("Borrower") is the owner of
certain land located in Riverside County, California, described in Exhibit A hereto
("Land"). The Land is currently improved with a multifamily housing project
("Improvements").
B. The Senior Mortgagee is making a loan to the Borrower in the original principal amount
of$ 5,670,000.00. The loan will be secured by a Multifamily Deed of Trust, Assignment
of Rents, Security Agreement and Fixture Filing dated April, 2012 ("Senior Mortgage")
encumbering the Land and Improvements and personal and other property described in
the Senior Mortgage and defined therein as "Mortgaged Property."
C. The Subordinate Mortgagee has made a loan to the Borrower in the original principal
amount of $590,000.00. The loan is secured by a Deed of Trust With Assignment of
Rents, Security Agreement and Fixture Filing dated September 28, 1993 ("Subordinate
Mortgage") encumbering the Land and Improvements.
D. The Senior Mortgage is intended to be recorded in the land records of Riverside County,
California ("Recording Office") of even date herewith and prior hereto. The
Subordinate Mortgage is recorded in the Recording Office at Document Number 382201.
E. The execution and delivery of this Agreement is a condition of Senior Mortgagee's
making of the Senior Mortgage loan.
AGREEMENT
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Subordination Agreement(CME and Portfolio)- Governmental Entity
1. Definitions. The following terms, when used in this Agreement (including, as
appropriate, when used in the above recitals), will have the following meanings.
(a) The terms "Condemnation," "Imposition Deposits," "Impositions," "Leases,"
"Rents," "Restoration" and "Transfer", as well as any term used in this
Agreement and not otherwise defined in this Agreement, will have the meanings
given to those terms in the Senior Mortgage.
(b) "Bankruptcy Proceeding" means any bankruptcy, reorganization, insolvency,
composition, restructuring, dissolution, liquidation, receivership, assignment for
the benefit of creditors, or custodianship action or proceeding under any federal or
state law with respect to the Borrower, any guarantor of any of the Senior
Indebtedness, any of their respective properties, or any of their respective
partners, members, officers, directors, or shareholders.
(c) "Borrower" means all persons or entities identified as "Borrower" in the first
Recital of this Agreement, together with their successors and assigns, and any
other person or entity who acquires title to the Land and Improvements after the
date of this Agreement; provided that the term "Borrower" will not include the
Senior Mortgagee in the event that the Senior Mortgagee may acquire title to the
Land and Improvements.
(d) "Casualty" means the occurrence of damage to or loss of any of the Mortgaged
Property by fire or other casualty.
(e) "Enforcement Action" means any of the following actions taken by or at the
direction of the Subordinate Mortgagee: the acceleration of all or any part of the
Subordinate Indebtedness, the advertising of or commencement of any foreclosure
or trustee's sale proceedings, the exercise of any power of sale, the acceptance of
a deed or assignment in lieu of foreclosure or sale, the collecting of Rents, the
obtaining of or seeking of the appointment of a receiver, the seeking of default
interest, the taking of possession or control of any of the Mortgaged Property, the
commencement of any suit or other legal, administrative, or arbitration
proceeding based upon the Subordinate Note or any other of the Subordinate Loan
Documents, the exercising of any banker's lien or rights of set-off or recoupment,
or the exercise of any other remedy against the Borrower, any other party liable
for any of the Subordinate Indebtedness or obligated under any of the Subordinate
Loan Documents, or the Mortgaged Property.
(f) "Enforcement Action Notice" means a written notice from the Subordinate
Mortgagee to the Senior Mortgagee, given following one or more Subordinate
Mortgage Default(s) and the expiration of any notice or cure periods provided for
such Subordinate Mortgage Default(s) in the Subordinate Loan Documents,
setting forth in reasonable detail the Subordinate Mortgage Default(s) and the
Enforcement Actions proposed to be taken by the Subordinate Mortgagee.
(g) "Loss Proceeds" means all monies received or to be received under any
insurance policy, from any condemning authority, or from any other source, as a
result or any Condemnation or Casualty.
(h) "Regulatory Agreement" means the Regulatory Agreement and Declaration of
Covenants and Restrictions dated September 28, 1993 and recorded in the
Recording Office as Document Number 382201.
Subordination Agreement(CME and Portfolio)- Governmental Entity Page 2
(i) "Senior Indebtedness" means the "Indebtedness" as defined in the Senior
Mortgage.
(j) "Senior Loan Documents" means the "Loan Documents" as defined in the
Senior Mortgage.
(k) "Senior Mortgage Default" means any act, failure to act, event, condition, or
occurrence which constitutes, or which with the giving of notice or the passage of
time, or both, would constitute, an "Event of Default" as defined in the Senior
Mortgage.
(1) "Senior Mortgagee" means the "Lender" as defined in the Senior Mortgage.
When any other person or entity becomes the legal holder of the Senior Note,
such other person or entity automatically will become the Senior Mortgagee.
(m) "Senior Note" means the promissory note or other evidence of the Senior
Indebtedness referred to in the Senior Mortgage and any replacement thereof.
(n) "Subordinate Indebtedness"means all sums evidenced or secured or guaranteed
by, or otherwise due and payable to the Subordinate Mortgagee pursuant to, the
Subordinate Loan Documents.
(o) "Subordinate Loan Documents" means the Subordinate Mortgage, the
Subordinate Note, any loan agreement, the Regulatory Agreement and all other
documents at any time evidencing, securing, guaranteeing, or otherwise delivered
in connection with the Subordinate Indebtedness, as the same may be amended
from time to time.
(p) "Subordinate Mortgage Default" means any act, failure to act, event, condition,
or occurrence which allows (but for any contrary provision of this Agreement), or
which with the giving of notice or the passage of time, or both, would allow (but
for any contrary provision of this Agreement), the Subordinate Mortgagee to take
an Enforcement Action.
(q) "Subordinate Mortgagee" means the person or entity named as such in the first
paragraph of this Agreement and any other person or entity who becomes the
legal holder of the Subordinate Note after the date of this Agreement.
(r) "Subordinate Note" means the promissory note or other evidence of the
Subordinate Indebtedness referred to in the Subordinate Mortgage and any
replacement thereof.
2. Subordination of Subordinate Indebtedness.
(a) The Subordinate Indebtedness is and will at all times continue to be subject and
subordinate in right of payment to the prior payment in full of the Senior
Indebtedness.
(b) Until the occurrence of a Senior Mortgage Default, the Subordinate Mortgagee
will be entitled to retain for its own account all payments made on account of the
principal of and interest on the Subordinate Indebtedness in accordance with the
requirements of the Subordinate Loan Documents; provided no such payment is
made more than 10 days in advance of the due date thereof. However,
immediately upon the Subordinate Mortgagee's receipt of notice or actual
knowledge of a Senior Mortgage Default, the Subordinate Mortgagee will not
Subordination Agreement(CME and Portfolio)- Governmental Entity Page 3
accept any payments on account of the Subordinate Indebtedness, and the
provisions of Section 2(c) of this Agreement will apply. The Subordinate
Mortgagee acknowledges that a Subordinate Mortgage Default constitutes a
Senior Mortgage Default. Accordingly, upon the occurrence of a Subordinate
Mortgage Default, the Subordinate Mortgagee will be deemed to have actual
knowledge of a Senior Mortgage Default.
(c) If(i) the Subordinate Mortgagee receives any payment, property, or asset of any
kind or in any form on account of the Subordinate Indebtedness (including,
without limitation, any proceeds from any Enforcement Action) after a Senior
Mortgage Default of which the Subordinate Mortgagee has actual knowledge (or
is deemed to have actual knowledge as provided in 2(b) above) or has been given
notice, or(ii) the Subordinate Mortgagee receives, voluntarily or involuntarily, by
operation of law or otherwise, any payment, property, or asset in or in connection
with any Bankruptcy Proceeding, such payment, property, or asset will be
received and held in trust for the Senior Mortgagee, The Subordinate Mortgagee
will promptly remit, in kind and properly endorsed as necessary, all such
payments, properties, and assets to the Senior Mortgagee. The Senior Mortgagee
will apply any payment, asset, or property so received from the Subordinate
Mortgagee to the Senior Indebtedness in such order, amount (with respect to any
asset or property other than immediately available funds), and manner as the
Senior Mortgagee will determine in its sole and absolute discretion.
(d) Without limiting the complete subordination of the Subordinate Indebtedness to
the payment in full of the Senior Indebtedness, in any Bankruptcy Proceeding,
upon any payment or distribution (whether in cash, property, securities, or
otherwise) to creditors (i) the Senior Indebtedness will first be paid in full in cash
before the Subordinate Mortgagee will be entitled to receive any payment or other
distribution on account of or in respect of the Subordinate Indebtedness, and (ii)
until all of the Senior Indebtedness is paid in full in cash, any payment or
distribution to which the Subordinate Mortgagee would be entitled but for this
Agreement (whether in cash, property, or other assets) will be made to the Senior
Mortgagee.
(e) The subordination of the Subordinate Indebtedness will continue in the event that
any payment under the Senior Loan Documents (whether by or on behalf of the
Borrower, as proceeds of security or enforcement of any right of set-off or
otherwise) is for any reason repaid or returned to the Borrower or its insolvent
estate, or avoided, set aside or required to be paid to the Borrower, a trustee,
receiver or other similar party under any bankruptcy, insolvency, receivership or
similar law. In such event, the Senior Indebtedness or part thereof originally
intended to be satisfied will be deemed to be reinstated and outstanding to the
extent of any repayment, return, or other action, as if such payment on account of
the Senior Indebtedness had not been made.
3. Subordination of Subordinate Loan Documents.
(a) Each of the Subordinate Loan Documents is, and will at all times remain, subject
and subordinate in all respects to the liens, terms, covenants, conditions,
operations, and effects of each of the Senior Loan Documents.
(b) The subordination of the Subordinate Loan Documents and of the Subordinate
Indebtedness will apply and continue notwithstanding (i) the actual date and time
of execution, delivery, recording, filing or perfection of each of the Senior Loan
Documents and of each of the Subordinate Loan Documents, and (ii) the
Subordination Agreement(CME and Portfolio)- Governmental Entity Page 4
availability of any collateral to the Senior Mortgagee, including the availability of
any collateral other than the Mortgaged Property.
(c) By reason of, and without in any way limiting, the full subordination of the
Subordinate Indebtedness and the Subordinate Loan Documents provided for in
this Agreement, all rights and claims of the Subordinate Mortgagee under the
Subordinate Loan Documents in or to the Mortgaged Property or any portion
thereof, the proceeds thereof, the Leases thereof, the Rents, issues and profits
therefrom, and the Loss Proceeds payable with respect thereto, are expressly
subject and subordinate in all respects to the rights and claims of the Senior
Mortgagee under the Senior Loan Documents in or to the Mortgaged Property or
any portion thereof, the proceeds thereof, the Leases thereof, the Rents, issues and
profits therefrom and the Loss Proceeds payable with respect thereto.
(d) If the Subordinate Mortgagee, by indemnification, subrogation or otherwise, will
acquire any lien, estate, right or other interest in any of the Mortgaged Property,
that lien, estate, right or other interest will be fully subject and subordinate to the
receipt by the Senior Mortgagee of payment in full of the Senior Indebtedness,
and to the Senior Loan Documents, to the same extent as the Subordinate
Indebtedness and the Subordinate Loan Documents are subordinate pursuant to
this Agreement.
4. Additional Representations and Covenants.
(a) The Subordinate Mortgagee represents and warrants each of the following:
(i) The Subordinate Mortgagee is now the owner and holder of the
Subordinate Loan Documents.
(ii) The Subordinate Loan Documents are now in full force and effect.
(iii) The Subordinate Loan Documents have not been modified or amended.
(iv) No Subordinate Mortgage Default has occurred.
(v) The current principal balance of the Subordinate Indebtedness is
$236,000.00.
(vi) No scheduled monthly payments under the Subordinate Note have been or
will be prepaid.
(vii) None of the rights of the Subordinate Mortgagee under any of the
Subordinate Loan Documents are subject to the rights of any third parties,
by way of subrogation, indemnification or otherwise.
(b) Without the prior written consent of the Senior Mortgagee in each instance, the
Subordinate Mortgagee will not do any of the following:
(i) Amend, modify, waive, extend, renew or replace any provision of any of
the Subordinate Loan Documents.
(ii) Pledge, assign, transfer, convey, or sell any interest in the Subordinate
Indebtedness or any of the Subordinate Loan Documents.
Subordination Agreement(CME and Portfolio)- Governmental Entity Page 5
(iii) Accept any payment on account of the Subordinate Indebtedness other
than a regularly scheduled payment of interest or principal and interest
made not earlier than 10 days prior to the due date thereof, or as expressly
authorized in Section 4(i).
(iv) Take any action which has the effect of increasing the Subordinate
Indebtedness.
(v) Appear in, defend or bring any action to protect the Subordinate
Mortgagee's interest in the Mortgaged Property.
(vi) Take any action concerning environmental matters affecting the
Mortgaged Property.
(c) The Subordinate Mortgagee will deliver to the Senior Mortgagee a copy of each
notice received or delivered by the Subordinate Mortgagee pursuant to the
Subordinate Loan Documents or in connection with the Subordinate Indebtedness,
simultaneously with the Subordinate Mortgagee's delivery or receipt of such
notice. The Senior Mortgagee will deliver to the Subordinate Mortgagee in the
manner required in Section 5(b) a copy of each notice of a Senior Mortgage
Default delivered to the Borrower by the Senior Mortgagee. Neither giving nor
failing to give a notice to the Senior Mortgagee or Subordinate Mortgagee
pursuant to this Section 4(c) will affect the validity of any notice given by the
Senior Mortgagee or Subordinate Mortgagee to the Borrower, as between the
Borrower and such of the Senior Mortgagee or the Subordinate Mortgagee as
provided the notice to the Borrower.
(d) Without the prior written consent of the Senior Mortgagee in each instance, the
Subordinate Mortgagee will not commence, or join with any other creditor in
commencing, any Bankruptcy Proceeding. In the event of a Bankruptcy
Proceeding, the Subordinate Mortgagee will not vote affirmatively in favor of any
plan of reorganization or liquidation unless the Senior Mortgagee has also voted
affirmatively in favor of such plan. In the event of any Bankruptcy Proceeding,
the Subordinate Mortgagee will not contest the continued accrual of interest on
the Senior Indebtedness, in accordance with and at the rates specified in the
Senior Loan Documents, both for periods before and for periods after the
commencement of such Bankruptcy Proceedings.
(e) Whenever the Subordinate Loan Documents give the Subordinate Mortgagee
approval or consent rights with respect to any matter, and a right of approval or
consent with regard to the same or substantially the same matter is also granted to
the Senior Mortgagee pursuant to the Senior Loan Documents or otherwise, the
Senior Mortgagee's approval or consent or failure to approve or consent, as the
case may be, will be binding on the Subordinate Mortgagee. None of the other
provisions of this Section 4 are intended to be in any way in limitation of the
provisions of this Section 4(e).
(f) All requirements pertaining to insurance under the Subordinate Loan Documents
(including requirements relating to amounts and types of coverages, deductibles
and special endorsements) will be deemed satisfied if the Borrower complies with
the insurance requirements under the Senior Loan Documents and of the Senior
Mortgagee. All original policies of insurance required pursuant to the Senior
Loan Documents will be held by the Senior Mortgagee. Nothing in this Section
4(f) will preclude the Subordinate Mortgagee from requiring that it be named as a
mortgagee and loss payee, as its interest may appear, under all policies of
Subordination Agreement(CME and Portfolio)- Governmental Entity Page 6
property damage insurance maintained by the Borrower with respect to the
Mortgaged Property, provided such action does not affect the priority of payment
of Loss Proceeds, or that the Subordinate Mortgagee be named as an additional
insured under all policies of liability insurance maintained by the Borrower with
respect to the Mortgaged Property.
(g) In the event of a Condemnation or a Casualty, the following provisions will apply:
(i) the rights of the Subordinate Mortgagee (under the Subordinate Loan
Documents or otherwise) to participate in any proceeding or action
relating to a Condemnation or a Casualty, or to participate or join in any
settlement of, or to adjust, any claims resulting from a Condemnation or a
Casualty, will be and remain subordinate in all respects to the Senior
Mortgagee's rights under the Senior Loan Documents with respect thereto,
and the Subordinate Mortgagee will be bound by any settlement or
adjustment of a claim resulting from a Condemnation or a Casualty made
by the Senior Mortgagee;
(ii) all Loss Proceeds will be applied either to payment of the costs and
expenses of Restoration or to payment on account of the Senior
Indebtedness, as and in the manner determined by the Senior Mortgagee in
its sole discretion;
(iii) in the event the Senior Mortgagee applies or releases Loss Proceeds for
the purposes of Restoration of the Mortgaged Property, the Subordinate
Mortgagee will release for such purpose all of its right, title and interest, if
any, in and to such Loss Proceeds. If the Senior Mortgagee holds Loss
Proceeds, or monitors the disbursement thereof, the Subordinate
Mortgagee will not do so. Nothing contained in this Agreement will be
deemed to require the Senior Mortgagee to act for or on behalf of the
Subordinate Mortgagee in connection with any Restoration or to hold or
monitor any Loss Proceeds in trust for or otherwise on behalf of the
Subordinate Mortgagee, and all or any Loss Proceeds may be commingled
with any funds of the Senior Mortgagee; and
(iv) if the Senior Mortgagee elects to apply Loss Proceeds to payment on
account of the Senior Indebtedness, and if the application of such Loss
Proceeds results in the payment in full of the entire Senior Indebtedness,
any remaining Loss Proceeds held by the Senior Mortgagee will be paid to
the Subordinate Mortgagee unless another party has asserted a claim to the
remaining Loss Proceeds.
(h) The Subordinate Mortgagee will enter into attornment and non-disturbance
agreements with all tenants under commercial or retail Leases, if any, to whom
the Senior Mortgagee has granted attornrnent and non-disturbance, on the same
terms and conditions given by the Senior Mortgagee.
(i) Except as provided in this Section 4(i), and regardless of any contrary provision in
the Subordinate Loan Documents, the Subordinate Mortgagee will not collect
payments for the purpose of escrowing for any cost or expense related to the
Mortgaged Property or for any portion of the Subordinate Indebtedness.
However, if the Senior Mortgagee is not collecting escrow payments for one or
more Impositions, the Subordinate Mortgagee may collect escrow payments for
such Impositions; provided that all payments so collected by the Subordinate
Subordination Agreement(CME and Portfolio)- Governmental Entity Page 7
Mortgagee will be held in trust by the Subordinate Mortgagee to be applied only
to the payment of such Impositions.
(j) Within 10 days after request by the Senior Mortgagee, the Subordinate Mortgagee
will furnish the Senior Mortgagee with a statement, duly acknowledged and
certified setting forth the then-current amount and terns of the Subordinate
Indebtedness, confirming that there exists no default under the Subordinate Loan
Documents (or describing any default that does exist), and certifying to such other
information with respect to the Subordinate Indebtedness as the Senior Mortgagee
may request.
(k) The Senior Mortgagee may amend, waive, postpone, extend, renew, replace,
reduce or otherwise modify any provisions of the Senior Loan Documents without
the necessity of obtaining the consent of or providing notice to the Subordinate
Mortgagee, and without affecting any of the provisions of this Agreement.
Notwithstanding the forgoing, Senior Mortgagee may not modify any provision of
the Senior Loan Documents that increases the Senior Indebtedness, except for
increases in the Senior Indebtedness that result from advances made by the Senior
Mortgagee to protect the security or lien priority of the Senior Mortgagee under
the Senior Loan Documents or to cure defaults under the Subordinate Loan
Documents.
5. Default Under Loan Documents.
(a) For a period of 90 days following delivery to the Senior Mortgagee of an
Enforcement Action Notice, the Senior Mortgagee will have the right to cure any
Subordinate Mortgage Default, provided if such Subordinate Mortgage Default is
a non-monetary default and is not capable of being cured within such 90-day
period and the Senior Mortgagee has commenced and is diligently pursuing such
cure to completion, the Senior Mortgagee will have such additional period of time
as may be required to cure such Subordinate Mortgage Default or until such time,
if ever, as the Senior Mortgagee (i) discontinues its pursuit of any cure and/or (ii)
delivers to the Subordinate Mortgagee the Senior Mortgagee's written consent to
the Enforcement Action described in the Enforcement Action Notice. The Senior
Mortgagee will not have any obligation whatsoever to cure any Subordinate
Mortgage Default. The Senior Mortgagee will not be subrogated to the rights of
the Subordinate Mortgagee under the Subordinate Loan Documents by reason of
the Senior Mortgagee having cured any Subordinate Mortgage Default. However,
the Subordinate Mortgagee acknowledges that all amounts advanced or expended
by the Senior Mortgagee in accordance with the Senior Loan Documents or to cure
a Subordinate Mortgage Default will be added to and become a part of the Senior
Indebtedness under Section 12 of the Senior Mortgage and will be secured by the
lien of,the Senior Mortgage.
(b) The Senior Mortgagee will deliver to the Subordinate Mortgagee a copy of any
notice sent by the Senior Mortgagee to the Borrower of a Senior Mortgage Default
within 5 business days of sending such notice to the Borrower. Failure of the Senior
Mortgagee to send notice to the Subordinate Mortgagee will not prevent the exercise
of the Senior Mortgagee's rights and remedies under the Senior Loan Documents.
The Subordinate Mortgagee will have the right, but not the obligation, to cure any
monetary Senior Mortgage Default within 30 days following the date of such notice;
provided, however, that the Senior Mortgagee will be entitled during such 30-day
period to continue to pursue its remedies under the Senior Loan Documents. The
Subordinate Mortgagee may have up to 90 days from the date of the notice to cure a
non-monetary Senior Mortgage Default if, during such 90-day period, the
Subordination Agreement(CME and Portfolio)- Governmental Entity Page 8
Subordinate Mortgagee keeps current all payments required by the Senior Loan
Documents. hi the event that such a non-monetary Senior Mortgage Default creates
an unacceptable level of risk relative to the Mortgaged Property, or Senior
Mortgagee's secured position relative to the Mortgaged Property, as determined by
the Senior Mortgagee in its sole discretion, then the Senior Mortgagee may exercise
during such 90-day period all available rights and remedies to protect and preserve
the Mortgaged Property and the Rents, revenues and other proceeds from the
Mortgaged Property. All amounts paid by the Subordinate Mortgagee to the Senior
Mortgagee to cure a Senior Mortgage Default will be deemed to have been advanced
by the Subordinate Mortgagee pursuant to, and will be secured by the lien of, the
Subordinate Mortgage. Notwithstanding anything in this Section 5(b) to the
contrary, the Subordinate Mortgagee's right to cure any Senior Mortgage Default
will terminate immediately upon the occurrence of any Bankruptcy Proceeding.
(c) In the event of a Subordinate Mortgage Default, the Subordinate Mortgagee will
not commence any Enforcement Action until 90 days after the Subordinate
Mortgagee has delivered to the Senior Mortgagee an Enforcement Action Notice
with respect to such Enforcement Action, provided that during such 90-day period
or such longer period as provided in Section 5(a), the Subordinate Mortgagee will
be entitled to seek specific performance to enforce covenants and agreements of
the Borrower relating to income, rent, or affordability restrictions contained in the
Regulatory Agreement, subject to the Senior Mortgagee's right to cure a
Subordinate Mortgage Default set forth in Section 5(a). The Subordinate
Mortgagee may not commence any other Enforcement Action, including but not
limited to any foreclosure action under the Subordinate Loan Documents, until the
earlier of (i) the expiration of such 90-day period or such longer period as
provided in Section 5(a) or (ii) the delivery by the Senior Mortgagee to the
Subordinate Mortgagee of the Senior Mortgagee's written consent to such
Enforcement Action by the Subordinate Mortgagee. The Subordinate Mortgagee
acknowledges that the Senior Mortgagee may grant or refuse consent to the
Subordinate Mortgagee's Enforcement Action in the Senior Mortgagee's sole and
absolute discretion. At the expiration of such 90-day period or such longer period
as provided in Section 5(a) and, subject to the Senior Mortgagee's right to cure set
forth in Section 5(a), Subordinate Mortgagee may commence any Enforcement
Action. Any Enforcement Action on the part of the Subordinate Mortgagee will
be subject to the provisions of this Agreement. The Subordinate Mortgagee
acknowledges that the provisions of this Section 5(c) are fair and reasonable
under the circumstances, that the Subordinate Mortgagee has received a
substantial benefit from the Senior Mortgagee having granted its consent to the
Subordinate Mortgage, and that the Senior Mortgagee would not have granted
such consent without the inclusion of these provisions in this Agreement.
(d) The Senior Mortgagee may pursue all rights and remedies available to it under the
Senior Loan Documents, at law, or in equity, regardless of any Enforcement
Action Notice or Enforcement Action by the Subordinate Mortgagee. No action
or failure to act on the part of the Senior Mortgagee in the event of a Subordinate
Mortgage Default or commencement of an Enforcement Action will constitute a
waiver on the part of the Senior Mortgagee of any provision of the Senior Loan
Documents or this Agreement.
(e) In the event that the Enforcement Action taken by the Subordinate Mortgagee is
the appointment of a receiver for any of the Mortgaged Property, all of the Rents,
issues, profits and proceeds collected by the receiver will be paid and applied by
the receiver solely to and for the benefit of the Senior Mortgagee until the Senior
Indebtedness will have been paid in full.
Subordination Agreement(CME and Portfolio)- Governmental Entity Page 9
(f) The Subordinate Mortgagee hereby expressly consents to and authorizes the
release by the Senior Mortgagee of all or any portion of the Mortgaged Property
from the lien, operation, and effect of the Senior Loan Documents. The
Subordinate Mortgagee hereby waives to the fullest extent permitted by law, all
equitable or other rights it may have (i) in connection with the release of all or any
portion of the Mortgaged Property, (ii) to require the separate sale of any portion
of the Mortgaged Property, (iii) to require the Senior Mortgagee to exhaust its
remedies against all or any portion of the Mortgaged Property or any combination
of portions of the Mortgaged Property or any other collateral for the Senior
Indebtedness, or (iv) to require the Senior Mortgagee to proceed against the
Borrower, any other party that may be liable for any of the Senior Indebtedness
(including any general partner of the Borrower if the Borrower is a partnership),
all or any portion of the Mortgaged Property or combination of portions of the
Mortgaged Property or any other collateral, before proceeding against all or such
portions or combination of portions of the Mortgaged Property as the Senior
Mortgagee determines. The Subordinate Mortgagee waives to the fullest extent
permitted by law any and all benefits under California Civil Code Sections 2845,
2849 and 2850. The Subordinate Mortgagee hereby expressly consents to and
authorizes, at the option of the Senior Mortgagee, the sale, either separately or
together, of all or any portion of the Mortgaged Property. The Subordinate
Mortgagee acknowledges that without notice to the Subordinate Mortgagee and
without affecting any of the provisions of this Agreement, the Senior Mortgagee
may (i) extend the time for or waive any payment or performance under the
Senior Loan Documents; (ii) modify or amend in any respect any provision of the
Senior Loan Documents; and (iii) modify, exchange, surrender, release and
otherwise deal with any additional collateral for the Senior Indebtedness.
(g) If any party other than the Borrower (including the Senior Mortgagee) acquires
title to any of the Mortgaged Property pursuant to a foreclosure of, or trustee's
sale or other exercise of any power of sale under, the Senior Mortgage conducted
in accordance with applicable law, the lien, operation, and effect of the
Subordinate Mortgage and other Subordinate Loan Documents automatically will
terminate with respect to such Mortgaged Property.
6. Miscellaneous Provisions.
(a) In the event of any conflict or inconsistency between the terms of the Subordinate
Loan Documents and the terms of this Agreement, the terms of this Agreement
will control.
(b) This Agreement will be binding upon and will inure to the benefit of the
respective legal successors and permitted assigns of the parties hereto. No other
party will be entitled to any benefits hereunder, whether as a third-party
beneficiary or otherwise.
(c) This Agreement does not constitute an approval by the Senior Mortgagee of the
terms of the Subordinate Loan Documents.
(d) Each notice, request, demand, consent, approval or other communication
(collectively, "notices," and singly, a "notice") which is required or permitted to
be given pursuant to this Agreement will be in writing and will be deemed to have
been duly and sufficiently given if(i) personally delivered with proof of delivery
thereof(any notice so delivered will be deemed to have been received at the time
so delivered), or (ii) sent by a national overnight courier service (such as FedEx)
Subordination Agreement(CME and Portfolio)- Governmental Entity Page 10
designating earliest available delivery (any notice so delivered will be deemed to
have been received on the next business day following receipt by the courier), or
(iii) sent by United States registered or certified mail, return receipt requested,
postage prepaid, at a post office regularly maintained by the United States Postal
Service (any notice so sent will be deemed to have been received on the date of
delivery as confirmed by the return receipt), addressed to the respective parties as
follows:
(i) Notices intended for the Senior Mortgagee will be addressed to:
Berkadia Commercial Mortgage LLC
118 Welsh Road
Horsham, Pennsylvania 19044
Attn: Servicing- Executive Vice President
Telephone: (215) 328-3391
(ii) Notices intended for the Subordinate Mortgagee will be addressed to:
The City of Palm Springs
Box 2743
Palm Springs, California 92263
Attention: City Attorney
Telephone: (760) 323-8299
Any party, by notice given pursuant to this Section, may change the person or
persons and/or address or addresses, or designate an additional person or persons
or an additional address or addresses, for its notices, but notice of a change of
address will only be effective upon receipt. Neither party will refuse or reject
delivery of any notice given in accordance with this Section.
(e) Nothing herein or in any of the Senior Loan Documents or Subordinate Loan
Documents will be deemed to constitute the Senior Mortgagee as a joint venturer
or partner of the Subordinate Mortgagee.
(f) Upon notice from the Senior Mortgagee from time to time, the Subordinate
Mortgagee will execute and deliver such additional instruments and documents,
and will take such actions, as are required by the Senior Mortgagee in order to
further evidence or effectuate the provisions and intent of this Agreement.
(g) This Agreement will be governed by the laws of the State in which the Land is
located.
(h) If any one or more of the provisions contained in this Agreement, or any
application thereof, will be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained herein,
and any other application thereof, will not in any way be affected or impaired
thereby.
(i) The tern of this Agreement will commence on the date hereof and will continue
until the earliest to occur of the following events: (i) the payment of all of the
Senior Indebtedness; provided that this Agreement will be reinstated in the event
any payment on account of the Senior Indebtedness is avoided, set aside,
rescinded or repaid by the Senior Mortgagee as described in Section 2(e) hereof,
(ii) the payment of all of the Subordinate Indebtedness other than by reason of
payments which the Subordinate Mortgagee is obligated to remit to the Senior
Subordination Agreement(CME and Portfolio)- Governmental Entity Page 11
(ii) the payment of all of the Subordinate Indebtedness other than by reason of
payments which the Subordinate Mortgagee is obligated to remit to the Senior
Mortgagee pursuant to this Agreement, (iii) the acquisition by the Senior
Mortgagee or by a third party purchaser, of title to the Mortgaged Property
pursuant to a foreclosure of, deed in lieu of foreclosure, or trustee's sale or other
exercise of a power of sale or similar disposition under, the Senior Mortgage; or
(iv) without limiting the provisions of Section 5(d), the acquisition by the
Subordinate Mortgagee, with the prior written consent of the Senior Mortgagee,
of title to the Mortgaged Property subject to the Senior Mortgage pursuant to a
foreclosure, or a deed in lieu of foreclosure, of(or the exercise of a power of sale
under) the Subordinate Mortgage.
(j) No failure or delay on the part of any party hereto in exercising any right, power
or remedy hereunder will operate as a waiver thereof, nor will any single or
partial exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy hereunder.
(k) Each party hereto acknowledges that in the event any party fails to comply with
its obligations hereunder, the other parties will have all rights available at law and
in equity, including the right to obtain specific performance of the obligations of
such defaulting party and injunctive relief.
(1) Nothing in this Agreement is intended, nor will it be construed, to in any way
limit the exercise by the Subordinate Mortgagee of its governmental powers
(including but not limited to police, regulatory and taxing powers) with respect to
the Borrower or the Mortgaged Property to the same extent as if it were not a
party to this Agreement or the transactions contemplated hereby.
(m) This Agreement may be amended, changed, modified, altered or terminated only
by a written instrument or written instruments signed by the parties to this
Agreement.
(n) This Agreement may be executed in two or more counterparts, each of which will
be deemed an original but all of which together will constitute one and the same
instrument.
[Signature and acknowledgment pages follow]
Subordination Agreement(CME and Portfolio)- Governmental Entity Page 12
IN WITNESS WHEREOF,the parties have duly executed this Agreement as of the day and year
first above written.
SENIOR MORTGAGEE:
BERKADIA COMMERCIAL MORTGAGE
LLC, a Delaware limited liability company
By:
Max V .Foore
Authorized Representative
ACKNOWLEDGMENT
State of Virginia
City of Richmond
On `� 3) ao l 2-,L- before me, () t r,'n,e Sm � Na14 rY
eft Name and finle oI e O er)
personally appeared Max W. Foore who proved to me on the basis
of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal. "WW11E 1160",�®®
S� s
.`�A��
RY P
C) .0
�y
�2 MY nt
t ' COMMISs[mj
Signature ( ^� t /�. A rk y� t (Sean •o's ��a <z
<<t
MA.t C,, gat � 1et3lja01 S a'o
cALT
Subordination Agreement(CME and Portfolio)- Governmental Entity Page 13
ACKNOWLEDGMENT OF INSTRUMENT
(Cal. Civil Code Section 1181)
State of California )
County of Riverside ) ss
City of Palm Springs)
On April 9, 2012, before me, KATHLEEN D. HART, CHIEF DEPUTY CITY
CLERK, CITY OF PALM SPRINGS, CALIFORNIA, personally appeared DAVID H.
READY, who I personally know is the CITY MANAGER of the CITY OF PALM
SPRINGS, whose name is subscribed to the within instrument and that he executed the
same in his official and authorized capacity on behalf of the City of Palm Springs, a
California Charter City.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
Witness my hand and the official seal of the City of Palm Springs, California, this
9th day of April 2012:
FpALM SA
P
Y N
'4„Q •S
Signature:
Kathleen D. Hart, CMC
Chief Deputy City Clerk
CITY OF PALM SPRINGS, CALIFORNIA
Title or Type of Document: h0c��hfi�l0n �c�Y Ao6C \0
Document Date: L�-w Number of Pages:
14A
SUBORDINATE MORTGAGEE:
THE CITY OF PALM SPRINGS, a charter city
APPROVEDASTO FORM: duly organized and existing under the laws and
the Constitution of the State/of California
By: /
BY
Name: io N ,o
Title:4ei Title:
ATTEST.
Cityci AC NOWLE GMENT
tU,,PRROr ED BY CITCQUXIL
State ofh
County of P1
On before me ���e
(Insert Name and Title of the Officer)
personally appeared , who proved to me on the basis
of satisfactory evidence to be the pers (s) whos name(s) is/are subscribed to the within
instrument and acknowledged to me at he/she/ ey executed the same in his/her/their
authorized capacity(ies), and that by his er/their signa e(s) on the instrument the person(s), or
the entity upon behalf of which the pers n(s) acted, execu d the instrument.
I certify under PENALTY OF PER RY under the laws f the State of California that the
foregoing paragraph is true and cone
WITNESS my hand and official se .
Signature (Seal)
Subordination Agreement(CME and Portfolio)- Governmental Entity Page 14
CONSENT OF BORROWER
The Borrower hereby acknowledges receipt of a copy of this Subordination Agreement, dated
April 4, 2012, by and between Berkadia Commercial Mortgage LLC and The City of Palm
Springs and consents to the agreement of the parties set forth herein.
TAHQUITZ ASSOCIATES,LP, a California
limited partnership
By: LINC-Tahquitz LLC, a California limited
liability company, its Managing General
Partner
By: LINC Housing Corporation, a California
nonprofit public benefit corporation, its
Sole Member and Manager
By:
wren NMao§hima
Co-CO and O
By: Tahquitz Associates, LLC, a California
limited liability company, its Co-General
Partner
By: Dalton Hydro, LLC, a Vermont limited
liability company, its Manager
By: S. R. C. Corp., a Utah corporation,
its Manager
By:
Stephen Harmsen
President
Date: April 4, 2012
Subordination Agreement(CME and Portfolio)- Governmental Entity Page 15
CONSENT OF BORROWER
The Borrower hereby acknowledges receipt of a copy of this Subordination Agreement, dated
April 10, 2012, by and between Berkadia Commercial Mortgage LLC and The City of Palm
Springs and consents to the agreement of the parties set forth herein.
TAHQMZ ASSOCIATES,LP, a California
limited partnership
By: LINC-Tahquitz LLC, a California limited
liability company,its Managing General
Partner
By: LINC Housing Corporation, a California
nonprofit public benefit corporation,its
Sole Member and Manager
By:
Karen N. Maeshima
Co-COO and CFO
By: Tahquitz Associates, LLC,a California
limited liability company,its Co-General
Partner
By: Dalton Hydro, LLC, a Vermont limited
liability company,its Manager
By: S. R. C. Corp., a Utah corporation,
its Manager
By. Z1zZ/,,,,
,Steplien H en -17
President
Date: April 4,2012
Subordination Agreement(CME and Portfolio)- Governmental Entity Page 15
ACKNOWLEDGMENT
State of�II )if re.)i a.
County of 1-0 511710 ele
CI 5 before me, /r1U L • Sint-A. ior" , uV t-c ,
(Insert Name and Title of theOfficer)
personally appeared Karen N. Maeshima , who proved to me on the basis
of satisfactory evidence to be the person(4 whose namejK is/a subscribed to the within
instrument and acknowledged to me that J;I&she/Ikte� executed the same in >K/her/Jhehr
authorized capacity(and that by(s/her/thefr signatureJ4 on the instrument the person(s'J, or
the entity upon behalf of which the person(A acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
TAMMY L. SMITH
WITNESS m hand and official seal. Notary
Public
s 1s0036s
Y � Notary Public•California
Los Angeles County
M Comm. Expires Jun 3,2012
1,
Signature f - ayk (Seal)
AC OWLED ENT
State of
County of
On before me,
(Insert Name and Title of the Officer)
personally appeared Ste hen M. H sen , who proved to me on the basis
of satisfactory evidence to be the person( whose ame(s) is/are subscribed to the within
instrument and acknowledged to me th he/she/the executed the same in his/her/their
authorized capacity(ies), and that by his/he their signatur s) on the instrument the person(s), or
the entity upon behalf of which the person ) acted, execute the instrument.
I certify under PENALTY OF PERJU under the laws o the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
Subordination Agreement(CME and Portfolio)- Governmental Entity Page 16
VNOWLEDGMENT
State of
County of
On i e o cerpersonally appeared o proved to me on the basis
of satisfactory evidence to be the person(s) w ose e(s) is/are subscribed to the within
instrument and acknowledged to rre that shelth executed the same in his/her/their
authorized capacity(ies), and that by his/her/ signatur on the instrument the person(s), or
the entity upon behalf of which the per., tied executed instrument.
I certify under PENALTY OF PERJUR under the laws of State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Sean
ACKNOWLEDGMENT
State of 4t"
County ofiu—
On QT� A42,0;1 before me, a of
erne Ti e o e ter
personally appeared Stephen M. Hamtsen , who proved to me on the basis
of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature�� (seal) ; lcamffAww
STATEOFUTAH01s _ r
Subordination Agreement(CME and Portfolio)- Governmental Entity Page 16
NOTARY SEAL
Under the provisions of Government Code 27361 .7, 1 certify
under the penalty of perjury that the Notary Seal on the
document to which this statement is attached reads as
follows:
Name of Notary: Vey CA DG11' 1 S'
Commission #:
Date Commission Expires: 9 - 1 c?
County where Bond is filed SM (i I (Ave
PLACE OF EXECUTION: San Bernardino
DATE: LJ - I �-
SIGNATURE:
EXHIBIT A
LEGAL DESCRIPTION
LOT 15 IN SECTION 13, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO MERIDIAN,
AS PER MAP OF PALM VALLEY COLONY LANDS, IN THE CITY OF PALM SPRINGS, COUNTY OF
RIVERSIDE, STATE OF CALIFORNIA, RECORDED IN BOOK 14, PAGE 652 OF MAPS, SAN DIEGO
COUNTY RECORDS.
EXCEPT THE PORTION LYING NORTH OF THE SOUTH LINE OF ENCHANTED HOMES UNIT NO.
1, RECORDED IN BOOK 34, PAGE 17 OF MAPS, RIVERSIDE COUNTY RECORDS.
SAID PROPERTY IS SHOWN ON RECORD OF SURVEY ENTITLED 'RECORD OF SURVEY OF A
PORTION OF LOT 1 OF SECTION 13, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO
MERIDIAN, AS SHOWN BY MAP OF PALM VALLEY COLONY LANDS, AS RECORDED IN BOOK
14, PAGE 652 OF MAPS, SAN DIEGO COUNTY RECORDS" ON FILE IN BOOK 33, PAGE 77,
RECORDS OF SURVEY, RNERSIDE COUNTY RECORDS.
APN: 502-143-004-5
Subordination Agreement(CME and Portfolio)- Governmental Entity Page 17
DOC # 2008-0663040
12/19/2008 08:00A Fee:42.00
Page 1 of 12
Recorded in Official Records
County of Riverside
Larry W. Ward
Assessor, County Clerk & Recorder
FREE RECORDING REQUESTED BY I 111111111111111111111111111111111111111111111111111AND WHEN RECORDED MAIL TO: II City Clerk S R U PAGE 512E I DA I MISC I LONG I RFD I COPY
City of Palm Springs is
Box 2743
Palm Springs, CA 92263 M A L 465 426 PCOR NCOR SMF NCHG M
r CTY UNI
T
MODIFICATION OF REGULATORY AGREEMENT 051
THIS MODIFICATION OF REGULATORY AGREEMENT ("Modification") is made
this 157'4day of Zoa-C-OPBi-Q— , 2008 by and among THE HOUSING AUTHORITY
OF THE CITY OF PALM SPRINGS, a housing authority of the State of California duly
organized and existing under the laws thereof (`Authority"), CORPORATE FUND FOR
HOUSING, a California nonprofit public benefit corporation (`Owner"), and TAHQUITZ
ASSOCIATES, LP, a California limited partnership ("Buyer"),
RECITALS
A. Authority, Owner and Seattle-First National Bank, as trustee, are parties to that
certain Regulatory Agreement and Declaration of Restrictive Covenants (`Regulatory
Agreement") dated September 1, 1993, recorded September 30, 1993, in the Official Records of
Riverside County, California as Instrument No. 382200, affecting certain real property of Owner
located in the City of Palm Springs, County of Riverside, State of California more particularly
described in Exhibit A attached hereto and incorporated herein by reference (`Property"). The
Regulatory Agreement was executed in connection with the issuance of$3,380,000.00 Housing
Authority of the City of Palm Springs Multifamily Housing Mortgage Revenue Bonds (Tahquitz
Court Apartments) (`Bonds"), and provides for certain terms, conditions, covenants and
restrictions relating to a low income multi-family housing project located on the Property.
B. The Bonds have been redeemed and paid in full, and as of the date hereof no
Bonds are outstanding.
C. Owner desires to transfer the Project (as defined in the Regulatory Agreement) to
Buyer and obtain financing from Capmark Bank (`Lender") in the amount of $4,326,000.00
(`Loan"). The Lender would not make the Loan without the Authority's consent to the transfer
and modification of the Regulatory Agreement to incorporate the terms of the Freddie Mac Rider
attached hereto.
D. Owner is a Qualifying Section 501(c)(3) Organization (as defined in the
Regulatory Agreement), and Buyer's managing general partner is a Qualifying Section 501(c)(3)
Organization.
E. The Authority has approved (i) the transfer of the Project to Buyer, (ii)
modification of the Regulatory Agreement to permit ownership by a limited partnership with a
managing general partner that is a Qualifying Section 501(c)(3) Organization and (iii)
modification of the Regulatory Agreement to incorporate the terms of the Freddie Mac Rider
attached hereto.
NOW, THEREFORE, Authority, Owner and Buyer declare, covenant and agree, in
consideration of the mutual promises contained herein, and for other good and valuable
consideration, as follows-
1. Pursuant to Section 15 of the Regulatory Agreement, the Authority has
determined that the Owner is not in default under the Regulatory Agreement and that the
continued operation of the Project by Buyer will comply with the provisions of the Regulatory
Agreement. The Authority hereby consents to the transfer of Project from Owner to Buyer.
Concurrently with the execution of this Modification, Owner and Buyer shall execute an
assignment and assumption agreement in a form approved by the City Attorney and record it in
the Official Records of Riverside County, California.
2. Section 15(iii) of the Regulatory Agreement shall be deleted in its entirety and
replaced with the following:
"(iii) the purchaser or its assignee is a Qualifying Section 501(c)(3) Organization.
or a limited partnership with a managing general partner that is a Qualifying
Section 501(c)(3) Organization, and is willing and capable of complying with the
terms and conditions of this Regulatory Agreement,"
3- Section 15(iv) of the Regulatory Agreement shall be amended by deleting
"purchaser or, assignee is a Qualified Section 501(c)(3) Organization" and replacing such text
with "purchaser or assignee or its managing general partner is a Qualified Section 501(c)(3)
Organization".
4. The Regulatory Agreement is amended to incorporate the terms and conditions of
the Freddie Mac Rider attached hereto.
5. Except as otherwise provided herein, the Regulatory Agreement shall be and
remain unmodified and in full force and effect.
6. This Modification may be executed in any number of counterparts each of which
shall be an original but al I of which shal I constitute one and the same document.
[SIGNATURES FOLLOW]
Modification of Regulatory Agreement—Housing Authonty
2
IN WITNESS VMEREOF, the parties have executed this Modification of Regulatory
Agreement as of the date first above written.
AUTHORITY:
ATTEST: HOUSING AUTHORITY OF THE CITY
OF PALM SPRINGS
By�
OWNER:
CORPORATE FUND FOR HOUSING,a APpROVEDAS TO FORM:
California nonprofit public benefit corporation
13 ,
Its: mile:
Modifita[ion of Regulatory Agm=ent—Ilousing Authority
3
BUYER:
TAHQUITZ ASSOCIATES, LP,
a California limited partnership
By: LINC-TAHQUITZ LLC,
a California limited liability company
Its:Managing General Partner
By:LILAC Housing Corporation,
a California nonprofit public benefit corporation
Its: Sole Member and Manager
By: W"'-
Kent Davis
Its: Senior Vice President
By: TAHQUITZ ASSOCIATI S, LLC,
a California limited liability company
Its: Co-General Partner
By: Dalton Hydro, LLC,
a Vermont limited liability company
Its: Manager
By: S. R. C. Corp.,
a Utah corporation
Its: Manager
By:
Steve Harmsen
Its: President
Modification of Regulatory Agaemem—Homsing Aurhohry
4
BUYER:
TAHQUITZ ASSOCIATES, LP,
a California limited partnership
By: LiNC-TAHQUITZ LLC,
a California limited liability company
Its: Managing General Partner
By: LINC Housing Corporation,
a California nonprofit public benefit corporation
Its: Sole Member and Manager
By:
Kent Davis
Its: Senior Vice President
By: TAHQUITZ ASSOCIATES, LLC,
a California limited liability company
Its: Co-General Partner
By: Dalton Hydro, LLC,
a Vermont limited liability company
Its: Manager
By: S. R. C. Corp.,
a Utah corporation
Its: Manager
$v:
Steve Harmsen
Its: President
Modification of Regulatory Agreement—Housing Audionry
4
ACKNOWLEDGMENT
State of California )
County of
On 0eE C 2,44:-J before me, ell �oe_ Q• DGknS `/4aluru� M ��i4�
(Insert name and title of the fficer)
personally appeared P 'h',jo ,who proved to
me an the basis of satisfactory evidence to be the personj"hose narnq( is/We�subscribed to the
within instrument and acknowledged to me that he%ahefQ�erexecuted the same in hisLb--d kleir authorized
capacity <and that by his/perjt m4r signature(s) on the instrument the persow, or the entity upon
behalf of which the persoa(s)'acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph Is true and correct.
ELMEi woVvts
WITNESS my hand nd official seal. Cptlgtss"917IM12
Nmwy Pw6o-cmdarn4
ORANGE count'
Signature (/� my Comm.ExpmJ! a.inn
(Seal)
State of California )
)ss.
County of f .- en /)� r,•
On a j�" �� ��� before me, l y w"l�l fu lXaIsTGK1 NolA�- 4b1 L
(� I '11 (insert name and title of the officer)
`
personally appeared boaak Vt.P449_ayul. 1"-wsa Tw&� p50+l who proved to
me on the basis of satisfactory evidence o be the person s)whose name(s))a re ubscribed to the
within instrument and acknowled a to me that De/X he executed the same in Ais/t their uthorized
capacity(ies), and that by */I-W e signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
CYNOtIA A-KRARDI
WITNESS my hand and official seal. Cpmmialon* 1645899
-* Notary Public-COAfomlc
RlverNde county
Signature MY comm.E+q*ftFeb 1E.2010'
(Seal)
Mod incaion of Regulatory Agreement-Housing Audiority
5
State of California )
)ss.
County of )
On before me,
(insert name and title of the officer)
personally appeared , who proved to
me on the basis of satisfactory evidence to be the person(s)whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s)on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
State of&ahf==ht
)ss.
County of
On UPr-- O �$ before me,
(insert name and title of the officer)
personally appeared STL y [ ( ( (Z U , who proved to
me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capaclty(ies), and that by his/her/their signature(s) on the Instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal. - 5-0-
Signature tit
CO� �a-�
(Seal)
Modification of Regulatory Agrccmcnt—Housing Authority
6
EXHIBIT A
LEGAL DESCRIPTION
LOT 15 IN SECTION 13, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO MERIDIAN,
AS PER MAP OF PALM VALLEY COLONY LANDS, IN THE CITY OF PALM SPRINGS, COUNTY OF
RIVERSIDE, STATE OF CALIFORNIA, RECORDED IN BOOK 14, PAGE 652 OF MAPS SAN DIEGO
COUNTY RECORDS.
EXCEPT THE PORTION LYING NORTH OF THE SOUTH LINE OF ENCHANTED HOMES UNIT NO.
1, RECORDED IN BOOK 34, PAGE 17 QF MAPS, RIVERSIDE COUNTY RECORDS.
SAID PROPERTY IS SHOWN ON RECORD OF SURVEY ENTITLED 'RECORD OF SURVEY OF A
PORTION OF LOT 1 OF SECTION 13, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO
MERIDIAN, AS SHOWN BY MAP OF PALM VALLEY COLONY LANDS, AS RECORDED IN BOOK
14, PAGE 652 OF MAPS, SAN DIEGO COUNTY RECORDS" ON FILE IN BOOK 33, PAGE 77,
RECORDS OF SURVEY, RIVERSIDE COUNTY RECORDS.
APN: 502-143-004-5
Modif-i=ion of Regulatory Agreement—Housing Authonty
7
FREDDIE MAC RIDER TO REGULATORY AGREEMENT
REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
THIS FREDDIE MAC RIDER TO REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS ("Rider"), executed as of
/a - 1 5 _, 2008 is deemed attached to and to form a part of the Regulatory
Agreement and Declaration of Restrictive Covenants (the "Regulatory Agreement"), dated as
of September 1, 1993[, as amended], by and between TAHQUITZ ASSOCIATES, LP, a
California limited partnership, as successor to Corporate Fund For Housing, a California
nonprofit public benefit corporation ("Owner"), its successors and assigns, and THE
HOUSING AUTHORITY OF THE CITY OF PALM SPRINGS, a housing authority of the
State of California("Authority")-
1. Definitions. All capitalized terms used in this Rider have the meanings given to
those terms in the Regulatory Agreement.
2. Applicability. This Rider shall amend and supplement the Regulatory
Agreement. In the event any provision of this Rider conflicts with the Regulatory
Agreement, the Rider shall supersede the conflicting provision of the Regulatory
Agreement- This Rider shall apply in spite of the fact that the covenants,
reservations and restrictions of the Regulatory Agreement run with the land and
shall be deemed applicable to any successor in interest to the Owner-
3. Obligations Not Secured by the Project. The payment and performance
obligations of the Owner and any subsequent owner of the Project under the
Regulatory Agreement shall not be secured by or constitute a security interest in
the Project. The occurrence of an event of default under the Regulatory
Agreement shall not defeat or render invalid the lien of the Multifamily Deed of
Trust, Assignment of Rents, Security Agreement and Fixture Filing executed by
the Owner for the benefit of Capmark Bank ("Capmark" , dated as of
/%=— ! � )2008 ("Security Instrument"), as assigned of even
date therewith from Capmark to the Federal Home Loan Mortgage Corporation
("Freddie Mae"). For purposes of this Rider, Capmark and Freddie Mac,
individually and together, are "Lender".
4- Obligations Personal. The Authority agrees that no owner of the Project
(including Lender) subsequent to the Owner will be liable for, assume or take title
to the Project subject to:
(a) any failure of any prior owner of the Project to perform or observe any
representation or warranty, affirmative or negative covenant or other
agreement or undertaking under the Regulatory Agreement; and
(b) the payment of any compensation or any accrued unpaid fees, costs,
expenses or penalties otherwise owed by any prior owner of the Project
under the Regulatory Agreement-
The Owner and each subsequent owner of the Project shall be responsible under
the Regulatory Agreement only for its own acts and omissions occurring during
the period of its ownership of the Project. All such liability and obligations shall
Initial`s= Authority / eJ Owner / Buyer
ModificationorRegolatory Ap v -housing Aurhoriry—Frtddie M;ic Rider 1
FREDDIE MAC RIDER TO REGULATORY AGREEMENT
REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
THIS FREDDIE MAC RIDER TO REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS ("Rider"). executed as of
)2--)`i , 2008 is deemed attached to and to form a part of the Regulatory
Agreement and Declaration of Restrictive Covenants (the "Regulatory Agreement'), dated as
of September 1, 1993[, as amended], by and between TAFIQUIT7 ASSOCIATES, LP, a
California limited partnership, as successor to Corporate Fund For Housing, a California
nonprofit public benefit corporation ("Owner"), its successors and assigns, and THE
HOUSING AUTHORITY OF THE CITY OF PALM SPRINGS, a housing authority of the
State of California("Authority").
1. Definitions. All capitalized terns used in this Rider have the meanings given to
those terms in the Regulatory Agreement.
2. Applicability. This Rider shall amend and supplement the Regulatory
Agreement. In the event any provision of this Rider conflicts with the Regulatory
Agreement, the Rider shall supersede the conflicting provision of the Regulatory
Agreement, This Rider shall apply in spite of the fact that the covenants,
reservations and restrictions of the Regulatory Agreement run with the land and
shall be deemed applicable to any successor in interest to the Owner.
3. Obligations Not Secured by the Project. The payment and performance
obligations of the Owner and any subsequent owner of the Project tinder the
Regulatory Agreement shall not be secured by or constitute a security interest in
the Project. The occurrence of an event of default under the Regulatory
Agreement shall not defeat or render invalid the lien of the Multifamily Deed of
Trust, Assignment of Rents, Security Agreement and Fixture Filing executed by
the Owngr for the benefit of Capmark Rank ("Capmark"), dated as of
2008 ("Security Instrument"), as assigned of even
date therewith from Capmark to the Federal Home Loan Mortgage Corporation
("Freddie Mae"). For purposes of this Rider, Capmark and Freddie Mac,
individually and together, are"Lender".
4. Obligations Personal. The Authority agrees that no owner of the Project
(including Lender) subsequent to the Owner will be liable for, assume or take title
to the Project subject to:
(a) any failure of any prior owner of the Project to perform or observe any
representation or warranty, affirmative or negative covenant or other
agreement or undertaking under the Regulatory Agreement; and
(b) the payment of any compensation or any accrued unpaid fees, costs,
expenses or penalties otherwise owed by any prior owner of the Project
under the Regulatory Agreement.
The Owner and each subsequent owner of the Project shall be responsible under
the Regulatory Agreement only for its own acts and omissions occurring during
the period of its ownership of the Project. All such liability and obligations shall
Initials ' Authority / Owner uyer
Modificstion of Regulatory Agreement-Housing Authority-Freddie Mac Rider
be and remain personal to such person even after such person ceases to be the
owner of the Project.
5. Foreclosure/Deed in Lieu of Foreclosure. All provisions of Section 15 of the
Regulatory Agreement related to the sale or transfer of the Project which require
the consent of the Authority or transfer agreements, compliance with Authority
transferee criteria and requirements, opinion requirements, assumption fees,
transfer fees, shall not apply to any transfer of title to the Project to Lender and/or
a nominee thereof by foreclosure or deed in lieu of foreclosure or to any third
party purchaser from Lender and/or a nominee thereof at or subsequent to
foreclosure or deed in lieu of foreclosure, and there shall be no reversion of title to
Owner by reason of any such transfer. Nothing contained in the Regulatory
Agreement shall affect any provision of the Security Instrument or any of the
other Loan Documents (as defined in Security Instrument) which requires the
Owner to obtain the consent of bender as a precondition to sale, transfer or other
disposition of, or any direct or indirect interest in, the Project or of any direct or
indirect interest in the Owner. No covenant obligating the Owner to obtain an
agreement from any transferee to abide by all requirements and restrictions of the
Regulatory Agreement shall apply to a transfer to Lender and/or a nominee
thereof upon foreclosure or deed in lieu of foreclosure.
For purposes of Section 16 of the Regulatory Agreement, a foreclosure or
delivery of a deed in lieu of foreclosure under the Security Instrument shall be
deemed a foreclosure of the lien of the "Credit Bank" and "Project Mortgage"
such that the terms of the Regulatory Agreement shall terminate and be of no
further force and effect.
6. Damage, Destruction or Condemnation of the Project. In the event that the
Project is damaged or destroyed or title io the Project, or any part thereof, is taken
through the exercise or the threat of the exercise of the power of eminent domain,
the Owner shall comply with all applicable requirements of the Security
Instrument and the applicable requirements of the Security Instrument shall
control over any conflicting provision of the Regulatory Agreement. In
furtherance, and not in limitation of the foregoing, Lender shall have the sole right
to determine, in accordance with the standards set forth in the Security
Instrument, whether insurance or condemnation proceeds are to be applied to
restore the Project (and to approve the plans and specifications in connection with
any such restoration) or to prepay indebtedness.
7. Regulatory Agreement Default. Notwithstanding anything contained in the
Regulatory Agreement to the contrary:
a. The occurrence of an Event of Default under the Regulatory Agreement
shall not defeat or render invalid the lien of the Security Instrument_
b. The occurrence of an Event of Default under the Regulatory Agreement
shall not be or be deemed to be a default under the Loan Documents,
except as may be otherwise specified in the Loan Documents.
8. Rider Provisions Control. The provisions of this Rider shall govern and control
with respect to the matters set forth herein, regardless of whether, pursuant to
Section 29 of the Regulatory Agreement, the rent and income restrictions of the
"Agency Regulatory Agreement" defined in Section 29 control due to an
inconsistency between the two Agreements.
Initials'!f Authority / Owner / Buyer
Modification of Reindatory Agrecmcnr—Housing Authority—Freddie Mac Rider 2
be and remain personal to such person even after such person ceases to be the
owner of the Project.
5. Foreclosure/Deed in Lieu of Foreclosure. All provisions of Section 15 of the
Regulatory Agreement related to the sale or transfer of the Project which require
the consent of the Authority or transfer agreements, compliance with Authority
transferee criteria and requirements, opinion requirements, assumption fees,
transfer fees, shall not apply to any transfer of title to the Project to Lender and/or
a nominee thereof by foreclosure or deed in lieu of foreclosure or to any third
party purchaser from Lender and/or a nominee thereof at or subsequent to
foreclosure or deed in lieu of foreclosure, and there shall be no reversion of title to
Owner by reason of any such transfer. Nothing contained in the Regulatory
Agreement shall affect any provision of the Security Instrument or any of the
other Loan Documents (as defined in Security Instrument) which requires the
Owner to obtain the consent of Lender as a precondition to sale, transfer or other
disposition of, or any direct or indirect interest in, the Project or of any direct or
indirect interest in the Owner. No covenant obligating the Owner to obtain an
agreement from any transferee to abide by all requirements and restrictions of the
Regulatory Agreement shall apply to a transfer to Lender and/or a nominee
thereof upon foreclosure or deed in lieu of foreclosure.
For purposes of Section 16 of the Regulatory Agreement, a foreclosure or
delivery of a deed in lieu of foreclosure under the Security Instrument shall be
deemed a foreclosure of the lien of the "Credit Bank" and "Project Mortgage"
such that the terms of the Regulatory Agreement shall terminate and be of no
further force and effect.
6. Damage, Destruction or Condemnation of the Project. In the event that the
Project is damaged or destroyed or title to the Project, or any part thereof, is taken
through the exercise or the threat of the exercise of the power of eminent domain,
the Owner shall comply with all applicable requirements of the Security
Instrument and the applicable requirements of the Security Instrument shall
control over any conflicting provision of the Regulatory Agreement. In
firrtherance, and not in limitation of the Foregoing, Lender shall have the sole right
to determine, in accordance with the standards set forth in the Security
Instrument, whether insurance or condemnation proceeds are to be applied to
restore the Project (and to approve the plans and specifications in connection with
any such restoration) or to prepay indebtedness.
7. Regulatory Agreement Default. Notwithstanding anything contained in the
Regulatory Agreement to the contrary:
a. The occurrence of an Event of Default under the Regulatory Agreement
shall not defeat or render invalid the lien of the Security Instrument-
b. The occurrence of an Event of Default under the Regulatory Agreement
shall not be or be deemed to be a default under the Loan Documents,
except as may be otherwise specified in the Loan Documents.
8, Rider Provisions Control. The provisions of this Rider shall govern and control
with respect to the matters set forth herein, regardless of whether, pursuant to
Section 29 of the Regulatory Agreement, the rent and income restrictions of the
"Agency Regulatory Agreement" defined in Section 29 control due to an
inconsistency between the two Agreements.
Initials: / Authority / Owner / �f�yer
Moddioahon of Regulatory Agree Mousing Authority—Freddie Mae Rider 2
Doc 0 2008-0663042
12/19/200g 08:00e I OF 9 Fee:42.00
Recorded }r,off,,ial Re ord5
County Of
de
Larry U. Ward Er
r,unty Clerk & Record
FREE RECORDING REQUESTED BY As..e II1111111�{Il�lllllllllllllllllll llllllllll�ll
AND WHEN RECORDED MAIL TO:
City Clerk S R U PAGE "SIZE DA I MISC I LONG I RFV COPY
City of Palm Springs a q
PO Box 2743
EXAM
A L 465 426 PCOR NCOR SMF NCHG
Palm Springs, CA 92263 �l
T: CTY UNI
ASSIGNMENT AND ASSUMPTION OF LOAN DOCUMENTS
r
This ASSIGNMENT AND ASSUMPTION OF LOAN DOCUMENTS (this �57
"Agreement") is effective as of AGM 8 rL i 5 2008 ("Effective Date") among
CORPORATE FUND FOR HOUSING, a California nonprofit public benefit corporation
(`Assignor"), TAHQUITZ ASSOCIATES, LP, a California limited partnership ("Assignee"),
and THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM_ SPRINGS,
CALIFORNIA, a public body corporate and politic (`Agency").
RECITALS
A. Assignor is the owner of certain real property located in the City of Palm Springs,
County of Riverside, State of California, more particularly described in Exhibit A attached
hereto and incorporated herein ("Property")-
B. Agency made a $590,000 loan to Assignor (the "Loan"), as evidenced by a
Promissory Note Secured by Deed of Trust dated September 28, 1993 (`Note").
C. Assignor and Agency entered into a Regulatory Agreement and Declaration of
Restrictive Covenants dated September 28, 1993, recorded September 30, 1993, in the Official
Records of Riverside County, California as Instrument No. 382201 (`Regulatory Agreement"),
which provides for certain terms, conditions, covenants and restrictions relating to a low income
multi-family housing project located on the Property.
D. The Loan is secured by a Deed of Trust with Assignment of Rents, Security
Agreement and Fixture Filing dated September 28, 1993, recorded September 30, 1993, in the
Official Records of Riverside County, California as Instrument No_ 382205 (`Deed of Trust")-
The Note, Regulatory Agreement Deed of Trust and all other documents evidencing or securing
the Loan are referred to herein as the "Loan Documents"-
E. Assignor desires to transfer the Project (as defined in the Loan Documents) to
Assignee with the consent of Agency.
F. Assignor desires to assign the Loan Documents to Assignee, and Assignee desires
to accept such assignment and assume the obligations of Assignor under the Loan Documents.
Assignment and Assumption(F;orgrvahlc Loan)(00183262)-Final 2 1
AGREEMENT
NOW, THEREFORE, [lie parties mutually agree as follows:
1_ Assignment of Loan Documents. Assignor hereby assigns to Assignee all of
Assignor's right, title and interest in and obligations under all the Loan Documents as of the
Effective Date.
2. Acceptance of Assigninent; Assumption of Obligations. Assignee hereby accepts
the assignments set forth in Section I and hereby assumes, agrees and undertakes to perform all
of the obligations, covenants and agreements of Assignor pursuant to the Loan Documents
arising from and after the Effective Date.
I Agency Consent. Pursuant to Section 8 of the Note, Section 5.1 1(b) of the Deed
of Trust and Section 6.2 of the Regulatory Agreement, Agency consents to the transfer of the
Project and assignment of the Loan Documents to Assignee. Agency hereby releases Assignor
from all obligations under the Loan Documents arising on or after the Effective Date.
4, Representations. Assignor hereby represents and warrants that it has not
previously assigned, pledged, hypothecated or otherwise transferred any of its rights under the
Loan Documents.
5. Subsequent Agreements. Assignor and Assignee agree to enter into all additional
documentation necessary to reflect or memorialize the assignments and assumptions described in
this Agreement.
6, Counterparts. This Agreement may be executed in counterparts, each of which
shall be an original and all of which shall constitute the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
Assignment and Assumption(Forgivable Loan)i00l N32(i2)•Final 2 2
IN WITNESS WHEREOF, the parties have executed this Assignment and Assumption of
Loan Documents as of the date rust written above.
ASSIGNOR:
CORPORATE FUND FOR HOUSING, a
California nonprofit public benefit corporation
/ rr �r
Its: �5V �2Y
ASSIGNEE:
TAHQUITZ ASSOCIATES,LP,
a California limited partnership
By:LINC-TAHQUITZ LLC,
a California limited liability company
Its:Managing General Partner
By:LINC Housing Corporation,
a California nonprofit public benefit corporation
Its: Sole Member and Manager
By:� G=
Kent Davis
Its: Senior Vice President
By: TAHQUITZ ASSOCIATES,LLC,
a California limited liability company
Its: Co-General Partner
By: Dalton Hyiiro,LLC,
a Vermont limited liability company
Its: Manager
By: S.R. C_ Corp.,
a Utah corporation
Its: Manager
By:
Steve Harmsen t
Its: President
Assisnmmt inaAs=ption(Forgivable Loan)(00193262)-Fiml 2
IN WITNESS WHEREOF, the parties have executed this Assignment and Assumption of
Loan Documents as of the date first written above.
ASSIGNOR:
CORPORATE FUND FOR HOUSING. a
California nonprofit public benefit corporation
By:
Its:
ASSIGNER:
TAl IQUITZ ASSOCIATES, LP.
a California limited partnership
By: L1NC-TAFIQUITZ LLC,
a California limited liability company
Its: Managing General Partner
By: L1NC Housing Corporation,
a California nonprofit public benefit corporation
Its: Sole Member and Manager .
By:
Kent Davis
Its: Senior Vice President
By: TA14QUITZ ASSOCIATES, LLC,
a California limited liability company
Its: Co-General Partner
By: Dalton Hydro, LLC,
a Vermont limited liability company
Its: Manager
By: S. R. C. Corp.,
a Utah corporation
Its: Manager
Steve Harmsen
Its: President
Assignmem and Assumpnnn(Forgivable Loan)(00183262)-Final 2
AGENCY:
ATTEST: THE COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM
1 , SPRINGS, CALIFORNIA
Its: :
APPROVED AS TO FORM:
ay:
Title:
i.,. i;2;i ku::¢:f IJ� y.',=� e s'.;.�ric 1�✓ a-- oiV�l�
Assignment and Assumption(Forgivable Loan)(00167262)-rinal 2
State of California )
County of
On before me,
(insert name and title of the off
personally appeared 2Lo_.JiS ,who
proved to me on the basis of satisfactory evidence to be the personKwhose namc(<is/arm
subscribed to the within instrument and acknowledged to me that he/she/4zep-executed the same
in bisfief/theinuthorized capacitykiesr and that by his/h�signature(s) on the instrument
the persop( , or the entity upon behalf of which the personk�-acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
=N.'OR
'WITNESS my hand and official seal
Signature
(Seal)
A5sigj=�vt and ASsmupiion(Forgivable Loan)(001832R2).Fival 2
�^V
State of ' Lam`=-
)
)ss.
County of 5�4/ 1 )
On 6'e6_ 7_oa before me,�lsJ�� �G Ce l /�o`i�n �e
/ (insert name and title the offcer)�L)
personally appeared �7— .v 14e V- wX-d e i' , who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/herAheir signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s)acted, executed the instrument.
i certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is trite and correct.
WITNESS my hand and official seal.
Signature
- °O}TF9 EMPIE
g 64102 1
oil
(Seal)
Assignment and Assumption(Forgivab)e Loan)(00183262)-Final 2
State of California )
)ss.
Countyof--&WJL ) n n n -
On bfLojx 15I a0s before me, (: �IG A. (7G{ rA N �Ii&,
pp (insert name and title of the of icer)
personally appeared YIGC v1cQ Yua S who
proved to me on the basis of satisfactory evidence to be the persons) whose names) re
subscribed tq the within instrument and acknowledged to me that die/3*e(the executed the same
in *11�prAISei authorized capacity(ies), and that by b6/1)br thei signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
CYNn11A A.BERARDI
CommtsslOn A' 7645699 $
WITNESS my hand and official seal. Nolav P nne-CautorNa f
RWairside County
` 0MVCOMM-ExprosFeb'18,20101
Signature 4�
(Seal)
Assignment.and Assumpnon(Forgivable Lour)(oo I93262)•Final 2
EXHIBIT A
DESCRIPTION OF THE PROPERTY
LOT 15 IN SECTION 13, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO MERIDIAN,
AS PER MAP OF PALM VALLEY COLONY LANDS, IN THE CITY OF PALM SPRINGS, COUNTY OF
RIVERSIDE, STATE OF CALIFORNIA, RECORDED IN BOOK 14, PAGE 652 OF MAPS, SAN DIEGO
COUNTY RECORDS.
EXCEPT THE PORTION LYING NORTH OF THE SOUTH LINE OF ENCHANTED HOMES UNIT NO.
1, RECORDED IN BOOK 34, PAGE 17 OF MAPS, RIVERSIDE COUNTY RECORDS.
SAID PROPERTY IS SHOWN ON RECORD OF SURVEY ENTITLED "RECORD OF SURVEY OF A
PORTION OF LOT 1 OF SECTION 13, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO
MERIDIAN, AS SHOWN BY MAP OF PALM VALLEY COLONY LANDS, AS RECORDED IN BOOK
14, PAGE 652 OF MAPS. SAN DIEGO COUNTY RECORDS" ON FILE IN BOOK 33, PAGE 77,
RECORDS OF SURVEY, RIVERSIDE COUNTY RECORDS.
APN: 502-143-004-5
As,mgnmen[and Assumption(Forgivable Loan)(00193262)-final 2
DCC # 2008-0663043
12/19/2008 08:00R Fee:39.00
Page 1 of a
Recerdcd in Official Records
County of Riverside
Larry W. Ward
;i,v�essor, County Clerk & Recorder
FREE RECORDING REQUESTED BY I IIIIII IIIIIII III IIIIII IIIIII III IIIIIII III IIIII III
AND WT-11;N RECORDED MAIL TO:
City Clerk E/"
U PAGE SIZE DA MISC LONG RFD COPY
City of Palm SpringsPO Box 2743
Palm Springs, CA 92263 A I L I 465 I426 PCOR NCOR SMF NCHG GPM
IT! CTY UNI }
ASSIGNMENT AND ASSUMPTION OF REGULATORY AGREEMENT T
051
This ASSIGNMENT AND ASSUMPTION OF REGULATORY AGREEMENT (this
"Agreement") is dated as of�—�ECEm�ER t5 2008 (".Effective Date") between
CORPORATE FUND FOR HOUSING, a California nonprofit public benefit corporation
("Assignor") and TAHQUITZ ASSOCIATES, LP, a California limited partnership ("Assignee")_
RECITALS
A. Assignor is the owner of certain real property located in the City of Palm Springs,
County of Riverside, State of California, more particularly described in Exhibit A attached
hereto and incorporated herein ("Property").
B_ Assignor and the Housing Authority of the City of Palm Springs ("Authority")
entered into a Regulatory Agreement and Declaration of Restrictive Covenants dated September
1, 1993, recorded September 30, 1993, in the Official Records of Riverside County, California as
Instrument No. 382200 ("Original Regulatory Agreement"), which provides for certain terms,
conditions, covenants and restrictions relating to a low income multi-family housing project
located on the Property.
C. Assignor desires to transfer the Project (as defined in the Original Regulatory
Agreement) to Assignee.
D. Concurrently with the execution of this Agreement, Assignor, Assignee and
Authority are entering into a Modification of Regulatory Agreement dated as of the Effective
Date ("Modification") to be recorded in the Official Records of.Riverside County, California,
which includes the consent of the Authority to the transfer the Project to Assignee. The Original
Regulatory Agreement together with the Modification are referred to herein as the "Regulatory
Agreement"_
f. Assignor desires to assign the Regulatory Agreement to Assignee, and Assignee
desires to accept such assignment and assume the obligations of Assignor under the Regulatory
Agreement.
F. The Modification requires that the City Attorney of the City of Palm Springs
approve the Form of this Agreement.
Assignment and Assumption(Bond Regulatory)(00183261)1 •Fina12 1
AGREEMENT
NOW, THEREFORE,the parties mutually agree as follows:
1. Assignment of Assigned Assets. Assignor hereby assigns to Assignee all of
Assignor's right, title and interest in and obligations under all dte Regulatory Agreement as of
the Effective Date.
2. Acceptance of Assignment, Assumption of Obligations. Assignee hereby accepts
the assignments set forth in Section 1 and hereby assumes, agrees and undertakes to perform all
of the obligations, covenants and agreements of Assignor pursuant to the Regulatory Agreement
arising from and after the Effective Date.
3. Representations. Assignor represents and warrants that it has not previously
assigned, pledged, hypothecated or otherwi'se transferred any of its rights under the Regulatory
Agreement
4, Subsequent Agreements. Assignor and Assignee agree to enter into all additional
documentation necessary to reflect or memorialize the assignments and assumptions described in
this Agreement-
5- City Approval. pursuant to Section 1 of the Modification, the City Attorney of
the City of Palm Springs has approved the form of this Agreement.
6. Counterparts. This Agreement may be executed in counterparts, each of which
shall be an original and all of which shall constitute the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
Assignment and Assumption(Bond Regulatory)(00183261)I-Final 2 2
IN WITNESS WHEREOF, the parties have executed this Assignment and Assumption of
Regulatory Agreement as of the date first written above.
ASSIGNOR:
CORPORATE FUND FOR HOUSING,a
California nonprofit public benefit corporation
By: �zzit
Its: 5ye.�-C' a
ASSIGNEE:
TAI4QUITZ ASSOCIATE'S, LP,
a California limited partnership
By: LINC-TAHQUITZ LLC,
a California limited liability company
Its: Managing General Partner
By:LINC housing Corporation,
a California nonprofit public benefit corporation
Its: Sole Member and NG anger
By: Alt
IL-
Kent Davis '
Its: Senior Vice President
By: TAHQUITZ ASSOCIATES,LLC,
a California limited liability company
Its: Co-General Partner
By:Dalton Hydro,LIC,
a Vermont limited liability company
Its: Manager
By: S.R. C_ Corp.,
a Utah corporation
Its: Manager
By:
Steve harmsen
Its: President
Assigmnrnt and Assumption(&md Regulatory)(00183261)1-final 2
IN WITNESS WHEREOF, the parties have executed this Assignment and Assumption of
Regulatory Agreement as of the date first written above_
ASSIGNOR:
CORPORATE FUND FOR HOUSING, a
California nonprofit public benefit corporation
By:
Its:
ASSIGNEE:
TAHQLIITZ ASSOCIATES, LP,
a California limited partnership
By: LINC-TAHQLII°fZ LLC,
a California limited liability company
Its: Managing General Partner
By: LINC Housing Corporation,
a California nonprofit public benefit corporation
Its: Sole Member and Manager
By:
Kent Davis
Its: Senior Vice President
By: TAHQUITZ ASSOCIATES, LLC,
a California limited liability company
Its: Co-General Partner
By: Dalton Hydro, LLC,
a Vermont limited liability company
Its: Manager
By: S. R. C. Corp_,
a Utah corporation
Its: Manager
By:_
Steve armsen -
Its: President
Assignment and Assumption(Bond Regulatory)(00 18326 1)]-Final 2
A roved as to
By: IA &01( �J
Clty mey, City of Palm Springs
Asstgnment and Assumption(Bond Regulatory)(0018326[)1-rinal 2
ACKNOWLEDGMENT
State of California )
)ss.
County of ,On 1 ) -Olt `� r`);—aob before me, MiZ. AAA,
(insert name and ills of the a ficer)
personally appeared Z�•IS ,who proved to Ine on the
basis of satisfactory evidence to be the persol},(s)'Whose name(sris/artsubscribed to the within instrument and
acknowledged to me that heLshe{dtey-axecuted the same in his/hmlt5eir-authorized capacity(ies�and that by
hisatff ert signature(s)on the instrument the persqp(s ,or the entity upon behalf of which the perspKacted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the Foregoing paragraph is
true and correct.
WITNESS my hand d official seal. ZLVARRr nnvls
/ COMMISSION■17841262
s
N=ry PWfiC-CaMfpmle
Signatur CCC��� OR'NGEC�n,
_ �N comp.F.*iwAy.7/.xott
• �� `/ (Seal)
State of California )
)ss.
County of )
On before me,
(insert name and title of the officer)
personally appeared ,who proved to me on the
basis of satisfactory evidence to be the person(s)whose name(s)is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/herftheir authorized capacity(ies),and that by
hisfher/their signature(s)on the instrument the person(s),or the entity upon behalf of which the person(s)acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is
true and correct.
WITNESS Iny hand and official seal.
Signature
(Seal)
Assignment and Assumption(Bond Regulatory)(00133261)1 -Final 2
State of^-" Ta.
)ss.
County or_!�,F—L /
On _. p'�t yea � before me, � L+—
(insert name and hle of the officer)
personally appeared CG U E- I-h.(-tkn eW—V ,who proved to me on the
basis of satisfactory evidence to be the person(s)whose name(s)is/are subscribed to the within instrument and
acknowledged to me that helshe/they executed the same in his/her/their authorized capacity(ics),and that by
his/her/their signature(s)on the instrument the person(s),or the entity upon behalf of which the person(s)acted,
executed the instrument.
I certify under PENALIY OF PERJURY under the laws of the State of California that the foregoing paragraph is
true and correct. i
WITNESS my hand and official sO. C H
(yOTP PiSB— • TEMPLE
S ' E.S� ''
{{� R� g 64102
Signature_ i'Ev. [,froCoc'Im-
1112012011 d,
(Seal)
Assignment and Assumption(Bond Regulatory)(001 M6Ill-Final 2
EXHIBIT A
DESCRIPTION OF THE PROPERTY
LOT 15 IN SECTION 13, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO MERIDIAN,
AS PER MAP OF PALM VALLEY COLONY LANDS, IN THE CITY OF PALM SPRINGS, COUNTY OF
RIVERSIDE, STATE OF CALIFORNIA, RECORDED IN BOOK 14, PAGE 652 OF MAPS,. SAN DIEGO
COUNTY RECORDS,
EXCEPT THE PORTION LYING NORTH OF THE SOUTH LINE OF ENCHANTED HOMES UNIT NO.
1, RECORDED IN BOOK 34, PAGE 17 OF MAPS. RIVERSIDE COUNTY RECORDS.
SAID PROPERTY IS SHOWN ON RECORD OF SURVEY ENTITLED "RECORD OF SURVEY OF A
PORTION OF LOT 1 OF SECTION 13, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO
MERIDIAN, AS SHOWN BY MAP OF PALM VALLEY COLONY LANDS, AS RECORDED IN ROOK
14 PAGE 652 OF MAPS SAN DIEGO COUNTY RECORDS" ON FILE IN BOOK 33, PAGE 77,
RECORDS OF SURVEY RIVERSIDE COUNTY RECORDS.
APN: 502-143-004-5
Assignment and Assumption(Bond Regulatory)(00183261)l-Final 2
LINC Ho
sing
OCT 192005 i j ° zV ° xA � ° '"
I)i JOHN OKURA
` 110 Pine Avenue,Suite 500
� Long Beach,CA 90802
i tel: 562-684-1130
fax: 562-684-1137
john@linchousing.org
October 18, 2005 �a�
Mr. David H. Ready
City Manager
City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92263-2743
RE:: CDLAC Application & Performance Deposit
Tahquitz Court Apartments, Palm Springs, CA (the "Project')
Mr Ready:
The City of Palm Springs ("Applicant') is making an application ("Application") to the
California Debt Limit Allocation Committee ("CDLAC") to receive a $12,000,000 allocation
of qualified private activity bonds. The proceeds of the bonds will be used by LINC
Housing Corporation as the "Project Sponsor" (as defined in the CDLAC Procedures),
through its affiliate, Tahquitz Court Housing Partners, L.P., to finance the acquisition,
rehabilitation, lease-up and operation of the Project as contemplated in the Application.
Concurrent with the making of the Application and pursuant to Section 7 of the
Procedures of the California Debt Limit Allocation Committee Implementing the
Allocation of the State Ceiling on Qualified Private Activity Bonds, Adopted July 20,
2005 (the "CDLAC Procedures"), the Applicant is required to i) post a "Performance
Deposit' (as defined in the CDLAC Procedures) equal to $60,000 (Sixty Thousand
Dollars), ii)certify to CDLAC on a pre-approved form that such Performance Deposit
has been posted, iii) provide evidence that such Performance Deposit has been
posted, and iv) hold, maintain and ultimately remit such Performance Deposit pending
further instructions from CDLAC or as otherwise set forth in the CDLAC Procedures.
In order to facilitate the making of the Application and posting of the Performance Deposit,
LINC Housing Corporation, as Project Sponsor, herewith attaches payment in the amount
of $60,000 (Sixty Thousand Dollars) by cashiers check made payable to the City of Palm
Springs, as Applicant.
respectfully request that you i) acknowledge by countersigning this letter, your receipt of
the attached cashiers check, ii) deposit the attached cashiers check into an interest-bearing
money market account held in the name of the Applicant on behalf of CDLAC for purposes
of posting the Performance Deposit, iii) sign the attached, pre-approved Performance
Deposit Certification Form, and iv) acknowledge and agree by countersigning this letter,
that subject CDLAC Procedures, all interest or dividends hereafter earned on the
Performance Deposit shall be remitted to the Project Sponsor at the time the Performance
Deposit itself is released or, if applicable, retained by CDLAC.
Thank you for your attention to this matter. Of course, should you need any additional
information or have any questions, please give me call.
Sincerely,
John Okura
Senior Project Manager
enclosures
Acknowledged and Agreed:
October , 2005
David H. Ready
City of palm Springs C
City of Palm Springs
STATE OF CALIFORNIA
CALIFORNIA DEBT LIMIT ALLOCATION COMMITTEE MEMBERS
915 CAPITOL MALL,ROOM 311
Pl
SACRAMENTO,CA 95814 Sralefie.""e Chairman
r
TELEPHONE. (916)653-3255
FAX (916)653-6827 -_ .. A Gneeo Schvvaaenegger
nvm
w,nhv treasurer ca wv/cdlac FOR CDLAC UW ONLY
Steve Westly
Score Cmninrol[er
Laurie Weir
Executive Director Application NO.
Analyst:
THE CALIFORNIA DEBT LIMIT ALLOCATION COMMITTEE (CDLAC)
APPLICATION FOR AN ALLOCATION OF THE STATE CEILING ON QUALIFIED
PRIVATE ACTIVITY BONDS FOR A QUALIFIED RESIDENTIAL RENTAL
PROJECT (QRRP)
APPLICANT(Issuer): City of Palm Springs
PROJECT SPONSOR: Tahquitz Court Housing Partners L.P.
PROJECT NAME: Tahquitz Court Apartments
We,the undersigned, hereby make an Application to the California Debt Limit Allocation Committee("CDLAC")
for the purpose of providing rental housing as described herein.
We agree it is our responsibility to provide CDLAC with one original and one duplicate copy of a complete
Application,accompanied by a check made payable to the Committee in the amount of$600 and a completed
Performance Deposit Certification form. We understand that succinct answers providing the requested information
are.required. We understand that if additional space is required,each additional page will be clearly labeled. We
agree that it is also our responsibility to provide all information that is deemed by CDLAC to be necessary to
evaluate our Application. We understand that CDLAC may verify the information provided and analyze materials
submitted as well as conduct its own investigation to evaluate the Application. We recognize that we have a duty to
inform CDLAC when any information in the Application or supplemental materials is no longer true and to supply
CDLAC with accurate information.
We represent that we have read all government code sections relevant to the CDLAC Procedures Implementing the
Allocation of the State Ceiling on Qualified Private Activity Bonds("Procedures"). We acknowledge that CDLAC
recommends that we seek advice from bond counsel.
We acknowledge that all materials and requirements are subject to change by enactment of federal or state
legislation.
In carrying out the development and operation of the proposed project,we agree to comply with all applicable
federal and state laws regarding unlawful discrimination and will abide by all CDLAC program requirements.
We acknowledge that our Application will be evaluated based on federal and state statutes and regulations
pertaining to Qualified Private Activity Bonds for Qualified Residential Rental Projects and the CDLAC Procedures,
which identify the minimum requirements, evaluation criteria, priorities,and other standards that will be employed
to evaluate Applications.
1 QRRP Revised 10105
We acknowledge that the information submitted to CDLAC in this Application or supplemental thereto may be
subject to the Public Records Act or other disclosure. We understand that CDLAC may make such information
public after a final decision by CDLAC has been made on the Application. CDLAC will maintain as confidential,
certain financial information,but cannot guarantee confidentiality.
The Project Sponsor declares under penalty of perjury that the information contained in the Application, exhibits,
attachments, and any further or supplemental documentation is true and correct to the best of its knowledge and
belief. The Applicant declares that the information contained in PARTS I and II of the Application is true and
correct to the best of its knowledge and belief,and as to information contained in the Application,exhibits,
attachments, and further or supplemental documentation provided by the Project Sponsor,the Applicant is not aware
of any information that would cause the Applicant to believe that the Application contains any untrue information or
omits to state any material information. We understand that misrepresentation may result in the cancellation of an
Allocation, and other actions which CDLAC is authorized to take.
The Project Sponsor certifies that the project can be completed within the development budget and the development
timetable set forth in our Application. The Project Sponsor further certifies that the proposed project can be
operated in the manner proposed within the operating budget set forth in the Application.
We agree to hold CDLAC, its members,officers, agents,and employees harmless from any matters arising out of or
related to the awarded Allocation.
We acknowledge that all Application materials are to be delivered to the address below, by 4:00 p.m. on the
appropriate date:
The California Debt Limit Allocation Committee
915 Capitol Mall, Room 311
Sacramento, CA 95814
E
Signature of Applicant's Senior ral Signa4e of Project Spo,Sor Officer
David H.Ready Hunter L. Johnson
Print Name Print Name
City Manager President/CEO
Title Title
Date Date 1 I t K
Additional information may be obtained by accessing the Committee's web site at
hgp://www.treasurer.ca.gov/cdlac/or by calling the Committee at(916)653-3255.
The Califiarnia'DebtLimit Allocation Comm Itee,complies with the,Amgricans With Disabilities Act(ADA). If you need
additional information or assistance,please contact the Cerium eat 916I653-325,5 or TDD 916/654=9922
2 QRRP Revised 10/05
PERFORMANCE DEPOSIT CERTIFICATION FORM
FOR AN APPLICATION FOR AN ALLOCATION OF QUALIFIED PRIVATE ACTIVITY BONDS
THE CALIFORNIA DEBT LIMIT ALLOCATION COMMITTEE (CDLAC)
915 Capitol Mall, Room 311
Sacramento, CA 95814
(916) 653-3255
CERTIFICATION OF THE City of Palm Springs (Applicant)
REGARDING AN APPLICATION FOR QUALIFIED PRIVATE ACTIVITY BOND ALLOCATION
In connection with the following Qualified Private Activity Bond Application:
APPLICANT: City of Palm Springs
AMOUNT OF ALLOCATION REQUESTED: $12,000,000
PROJECT NAME/PROJECT TYPE: Tahquitz Court Apartments /Acquisition &
Rehabilitation of 108 Units
the undersigned officer of the City of Palm Springs (Applicant) hereby certifies as follows:
1. I, DaYid H. Ready (Name), am the City Manager (Title) of the City of Palm Springs
(Applicant), and am duly authorized to make the deposit required below.
2. The City of Palm Springs (Applicant) has collected and has placed on deposit in an account
in a financial institution, $60,000.00 (Sixty Thousand) dollars (write out dollar amount, i.e. ten
thousand) which equals one half of one percent of the amount of the Qualified Private
Activity Bond Allocation being requested, not to exceed $100,000.
3. The deposit will be held until receipt of a written notification from the California Debt Limit
Allocation Committee that the deposit is authorized to be released or forfeited, in whole or in
part, pursuant to Section 7 of the Procedures of the Committee.
4. To the extent that any portion of the deposit is forfeited, the Applicant agrees to sent the
required amount in a check made payable to "The California Debt Limit Allocation Committee."
Such check shall be mailed to the Committee at the address noted above immediately upon
receipt of the written notification form the Committee.
5. The undersigned has read the Procedures of the California Debt Limit Allocation Committee
and understands that if a Qualified Private Activity Bond Allocation is not used for the purpose
for which it was granted, then the performance deposit must be fortified to the Committee.
Signature of Senior Official _ Print Name
_City Manager
Title Date
Revised 09/04
PERFORMANCE DEPOSIT CERTIFICATION FORM
FOR AN APPLICATION FOR AN ALLOCATION OF QUALIFIED PRIVATE ACTIVITY BONDS
1. Each Applicant for a Qualified Private Activity Bond Allocation must submit evidence to the
Committee that it has on deposit in an account in a financial institution, an amount equal to
one half of one percent of the amount of Qualified Private Activity Bond Allocation being
requested, not to exceed $100,000. Applicants are advised to read Section 7 of the
Committee's Procedures.
2. The Performance Deposit Certification Form (see other side) must be filed with the Committee
in conjunction with filing of an Application and by the Application Deadline.
3. The Committee will authorize release or require forfeiture of the deposit as follows:
a. If the Committee provides no Allocation, or an amount lower than requested by the
Applicant, the Committee will authorize release of the deposit or release of a pro rata
amount of the deposit so that only one-half (1/2) of one percent (1%) of the Allocation
granted is on deposit;
b. If the Applicant uses only a portion of the Allocation granted to issue bonds (or to
convert to mortgage credit certificates authority and to issue at least one mortgage
credit certificate), the Committee will authorize the release of the deposit in accordance
with the conditions imposed at the time of Allocation. The Committee will approve the
Allocation with the deposit fully refundable if at least 80% of the Allocation is used to
issue bonds or to convert mortgage credit certificate authority and to issue at least one
mortgage credit certificate;
c. If the Applicant does not use any of the Allocation to issue bonds (or to convert to
mortgage credit certificate authority and to issue at least one mortgage credit
certificate), the entire deposit will be forfeited; and
d. If the Applicant or the Project Sponsor withdraws the Application in writing prior to the
Committee's consideration of the Application, the performance deposit shall be
automatically release and no written authorization from the Committee shall be
necessary.
4. If the Applicant forfeits all or a part of a deposit pursuant to Section 7 of the Procedures of the
Committee, the Applicant shall send the required amount to the Committee in a check made
payable to "The California Debt Limit Allocation Committee". Amounts received will be
deposited in the Committee's Fund.
5. Project Sponsors bear the risk of forfeiting all or part of their performance deposit if the
Allocation is not used in accordance with the conditions and timeframes set forth in the
Committee Resolution.
Revised 09/04
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PALAI
U A" City of Palm Springs
Office of the City Manager
Coen*eo
�P- 3200 Tahqurtz Canyon Way • Palm Springs,California 92262
44 f FO RN TEL.(760)323-8201 • FAX (760)323-8207 •Too (76o)864-9527
October 19, 2005
Ms. Johanna Gullick,
Director of Housing Development
LINO Housing Corporation
110 Pine Ave, Ste 600
Long Beach, CA. 90802-4422
RE: Tahquitz Court Apartments
Dear Ms. Gullick:
Please accept this letter as the Community Redevelopment Agency of the City of Palm Springs'
("Agency") support of the Tahquitz Court Apartments application to the California Debt Limit
Allocation Committee (CDLAC)—Qualified Private Activity Bonds. This letter shall further serve
to certify that the Agency agrees to a financial commitment of $2.8 million to LINC Housing
Corporation and Tahquitz Court Housing Partners, L.P. for the acquisition and rehabilitation of
Tahquitz Court Apartments — 108 units, located at 2800, 2890, 2900 and 2990 East Tahquitz
Canyon Way in Palm Springs, California 92262.
Pursuant to the Agency action at their meeting of October 19, 2005, the terms of the loan
assistance shall be, as follows:
• An initial $800,000 will be front-loaded at the successful completion of the bond
closing and tax credit financing;
• Additional loan annual advances will be made to the Developer of$200,000 per year
for the next 10 years for the purpose of retiring a Series B short-term (10 year) note
sold with the Series A bonds, which would have a present value of approximately
$1,350,000. Therefore, the present value of the Agency assistance is approximately
$2,100,000;
• All Agency financial assistance is in the form of a note, which would start at
$800,000 and increase in amount by the annual$200,000 payment; the note provides
the Agency security for the Regulatory Agreement which contains the affordability
provisions and other performance requirements; and
• The interest note on the Agency note would be 1% simple interest, payable from
residual receipts on the project (the Agency would be in third position behind the
bonds and MHP) and for a period of 55 years.
Thank you for partnering with the Agency and bringing other partners to our City. These
collective linkages will strengthen our continued commitment in expanding decent quality
affordable housing choices for our citizens, especially those with special needs.
Post Office Box 2743 0 Palm Springs, California 92263-2743
Tahquitz Court Apartments
October 19, 2005
Page 2 of 2 Pages
Should we need to discuss any portion of this project in greater detail, please don't hesitate to
directly contact Mr. John Raymond, Director of Community & Economic Development, via email
at JohnRCcDci.palm-sprinas.ca.us or by phone at 760.323.8228. If Mr. Raymond is not
conveniently available, please feel free to contact Mr. Dale Cook, Community Development
Administrator, at his email address of DaleC(cDci.palm-slp is.ca.us or by phone at
760.323.8198.
Sincerely,
DAVID H. READY, '
City Manager
DHR/dec
Cc: Thomas J. Wilson, Assistant City Manager—Development Services
John S. Raymond, Director of Community& Economic Development
Dale E. Cook, Jr., Community Development Administrator
Please acknowledge your consent to the terms of this letter by signing and returning this
original to the Community Redevelopment Agency of the City of Palm Springs.
Tahquitz Court Housing Partners, L.P.
By: 4,-
unter L. hphnson
President y/CEO
Date: f2:�
De eC/Housing/Te quitzCrtApt CDLAC SupponLti Oc[05