HomeMy WebLinkAboutDEPOT AT SANTIAGO, LPINSURANCE NOT REQUIRED
WORK MAY PROCEED
CLERK OF COUNCIL
P—'Tr* JUN 1 4 2010 U
��; c. t� A 00 RECORDING REQUESTED BY, AND
WHEN RECORDED RETURN TO:
Davis Wright Tremaine LLP (US)
865 South Figueroa Street
Suite 2400
Los Angeles, California 90017
Attention: Tiffany K. Switzer, Esq.
A-2013-072-02
FIRST AMENDMENT TO DEED OF TRUST AND LOAN DOCUMENTS
This First Amendment to Deed of Trust and Loan Documents (this
"Amendment") dated as of May 30, 2018, is made by BANK OF AMERICA, N.A., a
national banking association ("Beneficiary"), and DEPOT AT SANTIAGO, L.P., a
California limited partnership ("Trustor"), with reference to the following facts:
A. Pursuant to that certain Construction and Permanent Loan Agreement
(Affordable Housing -California) (as amended, the "Loan Agreement") dated as of
March 1, 2016, executed by and between Beneficiary and Trustor, Beneficiary agreed to
fund a loan (the "Loan") to Trustor in the maximum principal arnount of $27,295,270.
The Loan is evidenced by a promissory note dated as of even date with the Loan
Agreement made by Trustor to the order of Beneficiary in the original principal amount
of $27,295,270 (the "Note"), and secured by a Construction and Permanent Deed of Trust
with Assignment of Leases and Rents, Security Agreement and Fixture Filing dated as of
March 1, 2016 (as amended, "Deed of Trust"), executed by Trustor, as trustor, for the
benefit of Beneficiary, as beneficiary, encumbering certain real property ("Property")
located in the County of Orange, State of California and more particularly described
therein, which was recorded in the Official Records of the County of Orange, State of
California (the "Official Records") on March 16, 2016, as Instrument No.
2016000109369. The Loan Agreement was previously amended by a Loan Modification
Agreement dated August 9, 2017, a Second Loan Modification Agreement dated
November 1, 2017, and a Third Loan Modification Agreement dated March 9, 2018, in
each case by and between Trustor and Beneficiary. The Loan Agreement, the Note, the
Deed of Trust and the other "Loan Documents" (as defined in the Loan Agreement) are
collectively referred to herein as the "Loan Documents".
B. Truster has requested and, subject to the terms and conditions of this
Amendment, Beneficiary has agreed, to extend the Construction Loan Maturity Date. In
connection with such extension, Trustor and Beneficiary are entering into that certain
First Amendment to Promissory Note dated as of even date herewith (the "First
Amendment to Note").
1-
4838-5699-1071v.5 4900000.001785
C. Capitalized terms used and not otherwise defined herein have the
meanings set forth for them in the Loan Agreement.
In consideration of the foregoing, and for other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Trustor and Beneficiary
hereby agree as follows:
1. Amendments to Loan Agreement.
L1 Pursuant to Section 2.9, the Construction Loan Maturity Date
under the Loan Agreement is hereby extended from June 15, 2018 to
September 15, 2018.
1.2 The following new defined terms are hereby added to the
"Definitions" section of the Loan Agreement:
"Beneficial Ownership Certification" means a certification regarding beneficial
ownership required by the Beneficial Ownership Regulation, which certification
shall be substantially similar in form and substance to the form 'of Certification
Regarding Beneficial Owners of Legal Entity Customers published jointly, in
May 2018, by the Loan Syndications and Trading Association and Securities
Industry and Financial Markets Association.
"Beneficial Ownership Regulation" means 31 C.F.R. § 1010.230.
"PATRIOT Act" means USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)).
1.3 Trustor acknowledges that there are no further extensions options
available to further extend the Construction Loan Maturity Date.
1.4 The following new section 4.38 is hereby added to the Loan
Agreement:
"Section 4.38 Promptly following any request therefor, Borrower shall
provide information and documentation reasonably requested by Lender for purposes of
compliance with applicable "know your customer" requirements under the PATRIOT
Act, the Beneficial Ownership Regulation or other applicable anti -money laundering
laws."
1.5 The following new Section 7.15 is hereby added to the Loan
Agreement:
"7.15 Beneficial Ownership Certification. The information included in
the Beneficial Ownership Certification is true and correct in all respects."
-2-
4838-5699-1071v.5 4900000-001785
1.6 Section 11.33 of the Loan Agreement is hereby amended and
restated in its entirety and replaced with the following:
"11.33 USA PATRIOT ACT; KYC Notice. Lender hereby notifies
Borrower that pursuant to the requirements of the USA PATRIOT Act (Title II of Pub. L.
107-56 (signed into law October 26, 200 1)) (the `PATRIOT Act'), it is required to obtain,
verify and record information that identifies Borrower, which information includes the
name and address of Borrower and other information that will allow Lender to identify
Borrower in accordance with the Act. Borrower shall, promptly following a request by
Lender, provide all documentation and other information that Lender requests in order to
comply with its ingoing obligations under applicable `know your customer' and anti -
money laundering rules and regulations, including the Act."
2. Conforming Amendments. Each reference in the Deed of Trust and in
each of the other Loan Documents to the "Note" shall hereafter mean the Note as
amended by the First Amendment to Note. Each reference to the Deed of Trust set forth
in any Loan Document shall hereafter mean the Deed of Trust as amended by this
Amendment. This Amendment and the First Amendment to Note shall, in each case, be a
"Loan Document" as such term is used in the Loan Agreement.
3. No Other Amendment. As expressly modified hereby, the Deed of Trust
and the Loan Agreement each remain in full force and effect.
4. Conditions Precedent. This Amendment will not be or become effective
unless, on or before June 15, 2018 (or such later date as Beneficiary may elect by written
notice to Trustor) the following conditions precedent (collectively, the "Conditions
Precedent") are satisfied: (a) this Amendment and the First Amendment to Note are, in
each case, fully executed and delivered to Beneficiary; (b) each General Partner consents
to this Amendment, the First Amendment to Note, and the First Amendment to Loan
Purchase Agreement (collectively, the "Amendment Documents") and the terms and
provisions set forth in each such document by executing the General Partners' Consent
and Waiver attached hereto; (c) each Guarantor consents to the Amendment Documents
and the terms and provisions set forth herein by executing the Guarantors' Consent
attached hereto; (d) Subordinate Lenders shall each consent to the Amendment
Documents and the terms and provisions set forth herein by executing the applicable
Subordinate Lender Consent attached hereto; (e) CCRC shall consent in writing, in a
form and substance acceptable to Beneficiary, to the Amendment Documents and the
terms and provisions set forth herein, and the "Termination Date" under the Loan
Purchase Agreement shall have been extended to a date no earlier than December 1, 2018
on terms and conditions approved by Beneficiary; (f) Investor Limited Partner shall
consent to the Amendment Documents and the terms and provisions set forth herein by
executing the Limited Partner's Consent and Waiver attached hereto; (g) Beneficiary has
confirmed in writing that the conditions to the extension of the Construction Loan
Maturity Date set forth in Section 2.9 of the Loan Agreement have been satisfied,
-3-
4838-5699-1071v.5 4900000-001785
including, but not limited to, the payment of the Extension Fee described therein; and (h)
Beneficiary shall have received such assurance as Beneficiary may require that the
validity and priority of the Deed of Trust has not been and will not be impaired by this
Amendment or the transactions contemplated by it, including the issuance of a CLTA
110.5 Form Endorsement (unmodified) in a form and substance satisfactory to
Beneficiary, insuring that (i) the terms and provisions of this Amendment shall not affect
the priority of the Deed of Trust, to be attached to Title Policy No. CA -FISC -IMP -
72307 -1-16-00291261 dated March 16, 2016 issued by Chicago Title Insurance
Company (the "Title Policy") referencing the Deed of Trust as the insured mortgage and
(ii) showing no additional exceptions superior to the Deed of Trust that were not shown
as such on the Title Policy.
5. No Other Amendment. As expressly modified hereby, the Deed of Trust
and the other Loan Documents remain in full force and effect.
6. Miscellaneous. This Amendment shall bind, and shall inure to the benefit
of, the successors and assigns of the parties. This document may be executed in
counterparts with the same force and effect as if the parties had executed one instrument,
and each such counterpart shall constitute an original hereof. This Amendment shall be
governed by the laws of the State of California (without regard to any choice of law
provisions thereof).
[Signature pages follow]
-4-
4838-5699-1071v.5 4900000-001785
IN WITNESS WHEREOF, Trustor and Beneficiary have caused this
Amendment to be duly executed as of the date first written above.
TRUSTOR:
DEPOT AT SANTIAGO, L.P.,
a California limited partnership
By: OHDC Depot, LLC,
a California limited liability company,
its managing general partner
By: Orange Housing Development
Corporation,
a California nonprofit public benefit
corporation,
its sole member
12
Eunice Bobert
Chief Executive Officer
By: C&C Depot, LLC,
a California limited liability company,
its developer general partner member
By: C&C Development Co., LLC,
a California limited liability
company,
its sole member
By:
Todd R. Cottle, its member
in
Barry A. Cottle, Trustee of
The Cottle Family Trust
Dated 3/8/1987, its member
[Signatures Continue on Next Page]
Please return an original
executed agreement to
S-1 out office (M -30/T11)
4838-5699-1071v.5 4900000-001785
BENEFICIARY:
BANK OF AMERICA, N.A.,
a national banking association
By:
Name:
Title:
S-2
4838-5699-1.071v.5 4900000-001785
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only
the identity of the individual who signed the document to which this
certificate is attached, and not the truthfulness, accuracy, or validity of
that document.
State of California
County of
On , 2018 before me,
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)
4838-5699-1071v.5 4900000-001785
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only
the identity of the individual who signed the document to which this
certificate is attached, and not the truthfulness, accuracy, or validity of
that document.
State of California
County of
On
2018 before me,
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)
4838-5699-1071v.5 4900000-001785
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only
the identity of the individual who signed the document to which this
certificate is attached, and not the truthfulness, accuracy, or validity of
that document.
State of California
County of
,n
2018 before me,
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)
4838-5699-1071v.5 4900000-001785
GENERAL PARTNERS' CONSENT AND WAIVER
The undersigned general partners hereby consent to the terms, conditions
and provisions of the foregoing First Amendment to Deed of Trust and Loan Documents
and the transactions contemplated by that agreement.
Dated: May 30, 2018
GENERAL PARTNERS:
OHDC DEPOT, LLC,
a California limited liability company
By: Orange Housing Development
Corporation,
a California nonprofit public benefit
corporation,
its sole member
am
Eunice Bobert
Chief Executive Officer
By: C&C Depot, LLC,
a California limited liability company,
its developer general partner member
By: C&C Development Co, LLC,
a California limited liability
company,
its sole member
da
Todd R. Cottle, its member
ME
Barry A. Cottle, Trustee of
The Cottle Family Trust
Dated 3/8/1987, its member
Please return an original
executed agreement to
our office (M-30/Tll)
[General Partner's Consent]
4838-5699-1071v.5 4900000-001785
GUARANTORS' CONSENT
BARRY A. COTTLE, an individual, TODD R. COTTLE, an individual, BARRY A.
COTTLE, as Trustee of the COTTLE FAMILY TRUST DATED 3/8/87, and TODD R.
COTTLE, as Trustee of the 2007 TODD R. COTTLE AND JENNIFER N. COTTLE
REVOCABLE TRUST (collectively, the "Guarantors"), hereby consent to the terms,
conditions and provisions of the foregoing First Deed of Trust and Loan Documents and the
transactions contemplated by that agreement. Guarantor hereby reaffirms the full force and
effectiveness of the Payment Guaranty dated as of March 1, 2016, executed by Guarantors in
favor of Beneficiary, the Completion Agreement dated March 1, 2016, executed by Guarantors
in favor of Beneficiary, and the Indemnity Agreement (Third Party Indemnity) dated March 1,
2016, executed by Guarantors in favor of Beneficiary (collectively, the "Guarantor
Documents"). In addition, Guarantor acknowledges that its obligations under the Guarantor
Documents are separate and distinct from those of the Trustor. All capitalized terms used herein
and not otherwise defined shall have the meanings ascribed to such terms in the foregoing First
Amendment to Deed of Trust and Loan Documents.
Dated: May 30, 2018
GUARANTOR:
BARRY A. COTTLE
TODD R. COTTLE
BARRY A. COTTLE, TRUSTEE OF THE
COTTLE FAMILY TRUST DATED 3/8/87
TODD R. COTTLE, TRUSTEE OF THE
2007 TODD R. COTTLE AND
JENNIFER N. COTTLE REVOCABLE TRUST
Please return an original
executed agreement to
our office (M -30/T11)
[Guarantor's Consent]
4838-5699-1071v.5 4900000-001785
LIMITED PARTNER'S CONSENT AND WAIVER
The undersigned partner hereby consents to the terms, conditions and provisions
of the foregoing First Amendment to Deed of Trust and Loan Documents and the
transactions contemplated by that agreement.
LIMITED PARTNER:
I�I�I9I�Y.Y[eJ►1�U�I,`Y�[K� ' � �].:7:V_Y_[1]�I
By:
Name:
Title:
Please return an original
executed agreement to
our office (M-30/'TII)
(CONSENT - INVESTOR LIMITED PARTNER)
4838-5699-1071v,5 4900000-001785
CALIFORNIA ALL-PURPOSE ACK1iTOWLEDGMENT
A notary public or other officer completing this certificate verifies only
the identity of the individual who signed the document to which this
certificate is attached, and not the truthfulness, accuracy, or validity of
that document.
State of California
County of
On
2018 before me,
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)
(CONSENT - INVESTOR LIMITED PARTNER)
4838-5699-1071v.5 4900000-001785
SUBORDINATE LENDER'S CONSENT AND WAIVER
City of Santa Ana ("Junior Lienholder") hereby (i) acknowledges all of the terms and
provisions of the foregoing First Amendment to Deed of Trust and Loan Documents
dated as of May 30, 2018, by and between Beneficiary and Trustor, that certain First
Amendment to Promissory Note dated as of even date herewith, by and between
Beneficiary and Trustor, and that certain Loan Purchase Agreement dated as of even date
herewith, by and among Trustor, Beneficiary and CCRC (collectively, the "Amendment
Documents"), (ii) acknowledges and agrees that the Subordination Agreement
("Subordination Agreement") dated as of March 1, 2016, among Trustor, Beneficiary
and Junior Lienholder, and recorded on March 16, 2016, as Instrument No.
2016000109374 in the Official Records, is and shall remain in full force and effect, and
that none of the terms of the Amendment Documents shall be construed to impair, or
provide a defense to, any of the terms and provisions contained in the Subordination
Agreement, (iii) acknowledges and agrees that the priority of the Deed of Trust shall not
be impaired as a result of either the Amendment Documents, and (iv) acknowledges and
agrees that lien or charge of the Deed of Trust shall at all times remain senior to the liens
or charges of the "Subordinate Loan Documents" described in the Subordination
Agreement; provided, however, except for Section 18 of the "Senior Affordability
Restrictions" (as defined in the Subordination Agreement), the "Senior Affordability
Restrictions" are not "Subordinate Loan Documents" and, except for Section 18 thereto,
the Senior Affordability Restrictions shall continue to be in senior position to the Deed of
Trust as provided in the Subordination Agreement. All capitalized terms used herein and
not otherwise defined shall have the meanings ascribed to such terms in the foregoing
Amendment.
[Signatures on Following Page]
(SUBORDINATE LENDER CONSENT — City of Santa Ana)
4838-5699-1071v.5 4900000-001785
Dated: May 30, 2018
ATTEST:
AIIWas)lf.1WNVAMA1
r
Maria D. Huizar Rau Godinez II
Clerk of the Council City Manager
f:119a 7x:11 Giffs 7►i
Sonia R. Carvalho
Steven A. Mendoza
Executive Director
Community Development Agency
(SUBORDINATE LENDER CONSENT — City of Santa Ana)
4838-5699-1071v.5 4900000-001.785
SUBORDINATE LENDER'S CONSENT AND WAIVER
Department of Housing and Community Development, a public agency of the State of
California ("Junior Lienholder") hereby (i) acknowledges all of the terms and
provisions of the foregoing First Amendment to Deed of Trust and Loan Documents
dated as of May 30, 2018, by and between Beneficiary and Trustor, that certain First
Amendment to Promissory Note dated as of even date herewith, by and between
Beneficiary and Trustor, and that certain Loan Purchase Agreement dated as of even date
herewith, by and among Trustor, Beneficiary and CCRC (collectively, the "Amendment
Documents"), (ii) acknowledges and agrees that the Subordination Agreement
("Subordination Agreement") dated as of March 1, 2016, among Trustor, Beneficiary
and Junior Lienholder, and recorded on March 16, 2016, as Instrument No.
2016000109375 in the Official Records, is and shall remain in full force and effect, and
that none of the terms of the Amendment Documents shall be construed to impair, or
provide a defense to, any of the terms and provisions contained in the Subordination
Agreement, (iii) acknowledges and agrees that the priority of the Deed of Trust shall not
be impaired as a result of the Amendment Documents, and (iv) acknowledges and agrees
that lien or charge of the Deed of Trust shall at all times remain senior to the liens or
charges of the "Infill Grant Documents" described in the Subordination Agreement. All
capitalized terms used herein and not otherwise defined shall have the meanings ascribed
to such terms in the foregoing Amendment.
Dated: May 30, 2018
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
By:
Name:
Title:
(SUBORDINATE LENDER CONSENT - HCD)
4838-5699-1071v.5 4900000-001.785
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only
the identity of the individual who signed the document to which this
certificate is attached, and not the truthfulness, accuracy, or validity of
that document.
State of California }
County of
On
2018 before me,
personally appeared 1
IZ�tUII i76c� lv�e2,� ,who proved
to me on the basis of satisfactory evidence to be the person( -s) whose name(s) Ware
subscribed to the within instrument and acknowledged to me that he/she they executed
the same in his/her their authorized capacityt-i> s); and that by his/hurftheir 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.
ROSAA FLORES
Notary Public California
Orange Cou)ty
f
Commis slon 2228450
My Comm. Expires Feb 72022
Signature 4,P%, 0.
(SEAL)
(SUBORDINATE LENDER CONSENT - HCD)
4838-5699-1071v.5 4900000-001785
SUBORDINATE LENDER'S CONSENT AND WAIVER
California Housing Finance Agency ("Junior Lienholder") hereby (i) acknowledges all
of the terms and provisions of the foregoing First Amendment to Deed of Trust and Loan
Documents dated as of May 30, 2018, by and between Beneficiary and Trustor, that
certain First Amendment to Promissory Note dated as of even date herewith, by and
between Beneficiary and Trustor, and that certain Loan Purchase Agreement dated as of
even date herewith, by and among Trustor, Beneficiary and CCRC (collectively, the
"Amendment Documents"), (ii) acknowledges and agrees that the Subordination
Agreement ("Subordination Agreement") dated as of March 1, 2016, among Trustor,
Beneficiary and Junior Lienholder, and recorded on March 16, 2016, as Instrument No.
2016000109376 in the Official Records, is and shall remain in full force and effect, and
that none of the terms of the Amendment Documents shall be construed to impair, or
provide a defense to, any of the terms and provisions contained in the Subordination
Agreement, (iii) acknowledges and agrees that the priority of the Deed of Trust shall not
be impaired as a result of the Amendment Documents, and (iv) acknowledges and agrees
that lien or charge of the Deed of Trust shall at all times remain senior to the liens or
charges of the "Subordinate Loan Dociunents" described in the Subordination
Agreement. All capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to such terms in the foregoing Amendment.
Dated: May 30, 2018
CALIFORNIA HOUSING FINANCE AGENCY
By: _
Name:
Title:
(SUBORDINATE LENDER CONSENT - CALHFA)
4838-5699-1071v.5 4900000-001785
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only
the identity of the individual who signed the document to which this
certificate is attached, and not the truthfulness, accuracy, or validity of
that document.
State of California
County of
On
2018 before me,
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)
(SUBORDINATE LENDER CONSENT - CALHFA)
4838-5699-1071 v.5 4900000-001785