HomeMy WebLinkAbout25B - AGMT - LOAN MOD WITH DEPOT AT SANTIAGOREQUEST FOR
COUNCIL- ACTION
CITY COUNCIL MEETING DATE:
MARCH 1, 2016
TITLE:
CITY LOAN MODIFICATION AGREEMENT
WITH DEPOT AT SANTIAGO, LP
(STRATEGIC PLAN NO. 5, 3)
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'CITY CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
El
As Recommended
❑
As Amended
❑
Ordinance on 1e' Reading
El
Ordinance on 2nd Reading
Implementing Resolution
❑
Set Public Hearing For
CONTINUED TO
FILE NUMBER
Authorize the City Manager and the Clerk of the Council to execute the City Loan Modification
Agreement with Depot at Santiago, LP, to comply with new regulations and policies from the
Housing and Community Development Department and California Housing Finance Agency,
subject to non - substantive changes approved by the City Manager and City Attorney.
DISCUSSION
On May 20, 2013, City Council approved a loan agreement with Depot at Santiago, LP in the
amount of $3,000,000 for a proposed mixed -use project located at 923 N. Santiago Street. This
project is a mixed -use development of 70 rental units (1, 2, and 3 bedrooms), 8,500 square feet
of retail space, and a 3,000 square foot community room. Sixty -nine units are at various levels of
affordability and one unit is for the onsite manager.
The funds committed to this project were $2,634,566 from the HOME Investment Partnerships
Program and $365,434 from the Community Development Block Grant program. Upon execution
of the loan agreement, funds were disbursed into the escrow account for the development of the
project.
Subsequently, on January 26, 2016, the City received Low - Income Housing Tax Credit investor
comments on the executed loan documents for the Depot at Santiago project. In addition, the
developer has leveraged additional funds for the project from the California Department of
Housing and Community Development ( "HCD ") and the California Housing Finance Agency
( "CaIHFA "). HCD and CaIHFA regulations and policies require that all residual receipt lenders
share 50% of the residual receipts for loan payments proportionately, based on the amount of
funds loaned by each lender. The City Loan Modification Agreement (Exhibit 1) includes revisions
to the Loan Agreement, City Affordability Restrictions, and City Deed of Trust to add language
allowing subordination of the City documents when required by other governmental agencies
providing financing to the project. The City Loan Modification Agreement also incorporates an
2513-1
Modification to Loan Documents - Depot at Santiago
March 1, 2016
Page 2
Amended and Restated City Promissory Note to address the change to the residual receipts
allocation required by the HCD and CaIHFA funding for the project, as well as other clarifications,
These revisions require approval by City Council,
STRATEGIC E�AN ALIGNMENT
Approval of this item supports the City's efforts to meet Goal #6 - Community Health, Livability,
Engagement and Sustainability, Objective #3 (Facilitate diverse housing opportunities and
support efforts to preserve and Improve the livability of Santa Ana neighborhoods),
There is no fiscal impact associated with this action,
aIIYx �,�
Kelly l� n rs
Executive Director
Community Development Agency
Exhibit: 1. City Loan Modification Agreement
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FREE RECORDING REQUESTED PURSUANT
TO GOVERNMENT CODE SECTION 27383
When Recorded Mail to:
City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988 (M -37)
Santa Ana, California 92702
Attn: Housing Manager
CITY LOAN MODIFICATION AGREEMENT
City of Santa Ana and Depot At Santiago, L,P,
(Depot at Santiago, 923 N. Santiago Street, Santa Ana, California)
This LOAN MODIFICATION AGREEMENT (this "Agreement ") is dated as of
2016 and is entered into by and between the City of Santa Ana, a charter city and
municipal corporation ( "City "), and Depot. At Santiago, LP., a California limited partnership (the
"Borrower "). The City and the Borrower shall collectively be referred to herein as "Parties."
RECITALS
A. Pursuant to that Loan Agreement between the City and the Borrower, dated July 11,
2013, and recorded in the Official Records of the County of Orange (the "Official Records ") as
Instrument No. 2013000476763 on August 9, 2013, as amended by the Amendment to Loan
Agreement between the City anal the Borrower, dated June 18, 2014, and recorded in the Official
Records as Instrument No. 2014000255562 on June 27, 2014 (collectively, "Loan Agreement "),
the City made a loan to the Borrower in the amount of $3,000,000 (the "City Loan ") to assist
with the acquisition and development of certain real property, more particularly described in the
attached Exhibit A, for the development of an affordable housing development.
B. The City Loan is also evidence by that certain City Promissory Note, dated July
11, 2013, executed by the Borrower and payable to the City in the original principal amount of
$3,000,000 ( "City Note "), which is secured by that certain City Deed of Trust and Assignment of
Rents executed by Borrower in favor of City, dated July 11, 2013, and recorded in the Official
Records as Instrument No. 2013000476764 on August 9, 2013 ( "City Deed of Trust ").
C. Hz cormection with the City Loan, the City and Borrower entered into that certain
Affordability Restrictions on Transfer of Property, dated July 11, 2013, and recorded in the
Official Records as Instrument No. 2013000476766 on August 9, 2013, as amended by the
1076 \49 \18433t 12
Mij
Amendment to Affordability Restrictions on Transfer of Property between City and Borrower, dated
June 18, 2014, and recorded in the Official Records as Instrument No. 2014000255563 on June 27,
2014 (collectively, "City Affordability Restrictions "), The Loan Agreement, City Note, City Deed of
Trust and City Affordability Restrictions are together referred to as the "City Loan Documents."
D, Capitalized terms not defined in this Agreement shall have the meanings set forth
in the Loan Agreement,
E. The Borrower has arranged for equity and lender financing for the development of
the affordable housing contemplated by the Loan Agreement and in connection therewith, the
Patties desire to modify certain terns of the Loan Agreement, City Note and City Deed.
NOW, TIIEREFORE, in consideration of the foregoing recitals, the mutual
covenants and agreements hereinafter set forth, and other consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
as follows:
Modification of the Loan Agreement, The Loan Agreement is hereby modified
a. Section 6.1(c), The last sentence of Section 6.1(c) of the Loan Agreement
is hereby replaced in its entirety as follows:
"The City's Affordability Restrictions on Transfer of Property shall remain
in first position on title and shall not be subordinated except that the City's
Affordability Restrictions on Transfer of Property, the City Deed of Trust
and other City Loan Doctunents may be subordinated if required by other
governmental agencies providing financing to the Project."
2. Modification of the City Affordability Restrictions. The City Affordability
Restrictions are hereby modified as follows:
a. Section IIA. The last sentence of Section 3.1A of the City Affordability
Restrictions is hereby replaced in its entirety as follows:
"The City's Affordability Restrictions on Transfer of Property shall remain
in first position on title and shall not be subordinated except as may be
required by other governmental agencies providing financing to the
Project."
3. Modification of the City Deed of Trust. The City Deed of Trust is hereby
modified as follows:
a. Section 4. The Section 4 of the City Deed of Trust is hereby replaced in
its entirety as follows:
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1076\49 \1843311.2
25B -4
"4. Subordination. The City's Affordability Restrictions on Transfer of
Property shall remain in first position on title and shall not be subordinated
except as maybe required by other governmental agencies providing
financing to the Project."
4. Modification of the City Note, The City accepts the executed original of the
Amended and Restated Promissory Note, attached as Exhibit B to this Agreement, as the
replacement promissory note for the City Note and hereby cancels the City Note,
5. Investor Limited Partner Rights. The City agrees that any cure tendered under the
City Loan Documents by Borrower's limited partner shall be accepted or rejected on the same
basis as if tendered by Borrower, and it will provide a copy of any notice delivered to Borrower
under the City Loan Documents to:
NEF Assignment Corporation, and its successors and /or assigns
10 South Riverside Plaza
Suite 1700
Chicago, IL, 60606
Attn: General Counsel
6, Full Force and Effect. Except as set forth in this Agreement, the City Loan
Documents remain unmodified and are in full force and effect
7. Headings. The headings used in this Agreement arc for convenience only and
shall be disregarded in interpreting the substantive provisions of this Agreement.
8. Exhibits. All attached exhibits are incorporated herein by reference.
9. Successors and Assigns. This Agreement shall be binding on and inure to the
benefit of the legal representatives, heirs, successors and assigns of the parties.
10. California Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
11. Invaliditv. Any provision of the Agreement which is determined by a court to be
invalid or unenforceable shall be deemed severed herefrom, and the remaining provisions shall
remain in full force and effect as if the invalid or unenforceable provision had not been a part
hereof,
12. Counte . arts. This Agreement may be signed by the different parties hereto in
counterparts, each of which shall be deemed an original but all of which together shall constitute
one and the same agreement.
SIGX4TUTiES ONT4OLLOfVING PAGE
1076\49A1843311.2
25B -5
IN WITNESS WHEREOF, the City and the Borrower have duly executed this Agreement as of
the day and year first above written.
CITY:
BORROWER:
1076\49\ 1843311.2
CITY OF SANTA ANA, a charter city and municipal corporation
ATTEST:
Maria D. Huizar
Clerk of the Council
APPROVED AS TO FORM
CITY OF SANTA ANA
David Cavazos
City Manager
DEPOT AT SANTIAGO, LP, 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 corporation, its sole member
go
Eunice Hobert, Chief Executive Officer
By: C &C Depot, LLC,
a California limited liability company,
its administrative general partner
By: C & C Development Co., LLC,
a California limited liability company, its sole member
r
By:
Todd R. Cottle, its member
By:
Barry A. Cottle, Trustee of The Cottle Family Trust
Dated 3/8/1987, its member
M
A notary public or other officer completing this certificate verifies only the I
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 , before me,
Notary Public, 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.
1076A49A1843311.2
WITNESS my hand and official seal.
Name:
Notary Public
25B -7
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 truthfiihress, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On , before me, ,
Notary Public, 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.
1 certify UNDER PENALTY OF PERJURY under the laws of the State of
California that the foregoing paragraph is true and correct.
1076 \49\1843311,2
WITNESS my hand and official seal.
Name:
Notary Public
r -
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 , before me, ,
Notary Public, 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.
1076 \49 \18433112
WITNESS my hand and official seal.
Name:
Notary Public
25B -9
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 , before me,
Notary Public, personally appeared who proved
to the on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to
the within instrument and acl<nowledged 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 instnunent 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.
1076 \49 \1843311.2
WITNESS my hand and official seal.
Name;
Notary Public
25B -10
EXHIBIT A
PROPERTY LEGAL DESCRIPTION
Real property in the City of Santa Ana, County of Orange, State of California, described as
follows:
PARCEL 1:
ALL OF BLOCK 52 OF THE TOWN OF SANTA ANA EAST, AS SHOWN ON THE OFFICIAL MAP OF SAID
TOWN, RECORDED IN BOOK 10, PAGE 43, OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE
RECORDER OF THE COUNTY OF LOS ANGELES.
EXCEPTING AND RESERVING UNTO SOUTHERN PACIFIC RAILROAD COMPANY, A CORPORATION,
THEIR SUCCESSORS AND ASSIGNS, ALL PETROLEUM, OIL, NATURAL GAS AND PRODUCTS DERIVED
THEREFROM WITHIN OR UNDERLYING SAID LAND, OR THAT MAY BE PRODUCED THEREFROM AND
ALL RIGHTS THERETO; PROVIDED, HOWEVER, THAT SAID SOUTHERN PACIFIC RAILROAD COMPANY,
A CORPORATION, THEIR SUCCESSORS AND ASSIGNS, SHALL NOT USE THE SURFACE OF SAID LAND
IN THE EXERCISE OF ANY OF SAID RIGHTS, BUT SHALL HAVE THE RIGHT TO ENTER INTO AND USE
THE SUB - SURFACE OF SAID LAND BY LATERAL OR SLANT DRILLING AND BORING FOR SUCH
PURPOSES; PROVIDED, FURTHER, THAT IN SO DOING SAID SOUTHERN PACIFIC RAILROAD
COMPANY, A
CORPORATION, THEIR SUCCESSORS OR ASSIGNS, SHALL NOT DISTURB THE SURFACE OF SAID LAND,
OR ANY IMPROVEMENTS THEREON, OR REMOVE OR IMPAIR THE LATERAL OR SUBJECT SUPPORT OF
SAID LAND, OR ANY IMPROVEMENT THEREON, BY DEED RECORDED JULY 14,
1945, IN BOOK 1326, PAGE 24, OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA,
ALSO EXCEPTING THEREFROM THOSE PORTIONS OF LOTS 15 AND 16 OF BLOCK 52 GRANTED TO THE
CITY OF SANTA ANNA, A MUNICIPAL CORPORATION BY FINAL ORDER OF CONDEMNATION, CASE NO.
160 973, RECORDED NOVEMBER 26, 1969, AS INSTRUMENT NO.
15762, IN BOOK 9148, PAGE 783 OF OFFICIAL RECORDS.
PARCEL 2:
THAT PORTION OF LOT 8 IN BLOCK D OF HAWKIN'S ADDITION TO SANTA ANA, AS SHOWN ON A MAP
RECORDED IN BOOK 13, PAGE 36 OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY,
CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 8 OF THE HAWKIN'S ADDITION TO SANTA
ANA; THENCE SOUTHEASTERLY 77.22 FEET TO A POINT DISTANT SOUTHERLY, MEASURED AT RIGHT
ANGLES 69.80 FEET FROM THE NORTH LINE OF SAID LOT 8, SAID POINT BEING ALSO DISTANT
WESTERLY, MEASURED AT RIGHT ANGLES 93.87 FEET FROM THE EAST LINE OF SAID LOT 8; THENCE
NORTHEASTERLYTO A POINT DISTANT SOUTHERLY, MEASURED AT RIGHT ANGLES 31.53 FEET FROM
THE SAID NORTH LINE, SAID POINT BEING ALSO
DISTANT WESTERLY, MEASURED AT RIGHTANGLES 14.34 FEET FROM THE SAID EAST LINE, SAID
POINT BEING ALSO THE POINT OF TANGENCY WITH A CURVE CONCAVE NORTHWESTERLY, HAVING
A RADIUS OF 25.00 FEET; THENCE NORTHEASTERLY ALONG SAID
CURVE THROUGH A CENTRAL ANGLE OF 640 50'49" AN ARC - DISTANCE OF 28.36 FEET TO THE
POINT OF TANGENCY WITH THE EAST LINE OF SAID LOT 8; THENCE NORTHERLY ALONG SAID EAST
LINE 8.87 FEET; THENCE WESTERLY 126.9 FEET ALONG THE NORTH LINE OF SAID LOT 8 TO THE
POINT OF BEGINNING,
APN: 398- 202 -01 and 398 - 202 -10
1076\49 \184331 L2
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EXHIBIT B
FORM OF
AMENDED AND RESTATED CITY PROMISSORY NOTE
AMENDED AND RESTATED
CITY PROMISSORYNOTE
$3,000,000.00
February 1, 2016 Santa Ana, California
FOR VALUE RECEIVED, Depot At Santiago L.P., a California limited partnership
(the "Borrower"), promises to pay to THE CITY OF SANTA ANA, a municipal corporation
and charter city (the "City "), or order, at the City office at 20 Civic Center Plaza, Santa Ana,
California 92701, or such other place as the City may designate in writing, the sum of Three
Million Dollars ($3,000,000.00) (the "Note Amount "), in currency of the United States of
America, which at the time of payment is lawful for the payment of public and private debts. This
Amended and Restated City Promissory Note annends and restates, and cancels, in its entirety, the
City Promissory Note in the original principal amount of Three Million 'Dollars ($3,000,000.00),
dated as of July 11, 2013, executed by the Borrower in favor of the City.
1. Agreement. This Amended and Restated City Promissory Note (the "Note ")
is given in accordance with that certain Loan Agreement executed by the City and Borrower,
dated concurrently herewith (the "Agreement ") with regard to the development of the property
located at 923 N. Santiago Street, Santa Ana, California ( "the Property ") for use as an affordable
rental housing project ( "the Project "). The rights and obligations of the Borrower and the City
under this Note shall be governed by the Agreement aid by the additional terms set forth in this
Note. Capitalized terms not defined herein shall have the meaning ascribed to such tenn in the
Agreement. In the event of any inconsistencies between the terms of this Note and the terms of
the Agreement or any other document related to the Note Amount, the terms of this Note shall
prevail.
2. Interest, The Note Amount shall bear simple interest at the rate of Three Percent
(3 %) per annum, from the date of issuance of the Certificate of Occupancy /Completion. -
3. Repayment of Note Amount. The Note Amount shall be paid by the Borrower's
annual payment to the City of an amount equal to thirty -one and forty -seven one hundredths
percent (31.47 %) of the Residual Receipts (as defined below) from operation of the Project as
determined by a residual receipts calculation from the operation of the Project the preceding
calendar year. Annual Residual Receipts payment shall be paid by the Borrower and shall be
delivered on or before one hundred fifty (150) days after the end of the Borrower's fiscal year, of
each year dining the term of this Note first following the date the Project is placed in service,
until the Note Amotmt and all rmpaid interest thereon has been repaid in full. Any remaining
portion of the Note Amormt shall be due and payable on the earlier to occur of (a) the fifty -fifth
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25B -12
(55th) anniversary of the date of the issuance of the Certificate of Completion for the Project; or
(b) July 11, 2071. Notwithstanding the foregoing, the full Note Amount may be accelerated
as set forth in Section 14 hereof.
4. Definitions.
As used herein, "Annual Project Revenue" shall mean all gross income and all
revenues of any kind from the Project in a calendar year, including without limitation, rent,
Section 8 housing assistance payments, if any, late charges, vending machine income, and any
other revenues of whatever kind or nature from the Project, except that security deposits (until
applied), interest on security deposits and required reserves, sales proceeds, and the proceeds of
loans, refinancings, condemnation, insurance claims, and partner capital contributions, shall not be
considered Annual Project Revenue,
As used herein, "Applicable Federal Rate" means the interest rate set by the
United States Treasury from time to time for the purpose of determining applicable Low Income
Housing Tax Credit interest rates published by the Internal Revenue Service in monthly reserve
rulings.
As used herein, "Debt Service" means regularly scheduled payments of principal and
interest made in a calendar year pursuant to the financing obtained for the development and
ownership of the Project which has been approved by the City pursuant to the Agreement, and
which is senior in lien priority to the City Loan, but excluding payments made pursuant to the
Promissory Note.
As used herein, "Capital Replacement Reserve" shall mean a reasonably required
reserve not to exceed $250 per unit per year (or such greater amount as may be required by
lenders or investors for the Project, to be used for the purpose of replacing capital items.
On or before one hundred fifty (150) days after the end of the Borrower's fiscal
year, of each year commencing in the year after the issuance of the Certificate of Completion
for the Project, the Borrower shall annually provide the City an audited financial statement for the
Project and a Residual Receipts Report, in the form attached hereto as Exhibit A, which shall
describe in detail the Annual Project Revenue, Debt Service, Operating Expenses, Capital
Replacement Reserve (including deposits therein and expenditures therefrom), and Residual
Receipts for that year for the Project. The Borrower shall also submit to the City, on or before one
hundred fifty (150) days after the end of the Borrower's fiscal year, of each year commencing
in the year of the issuance of the Certificate of Completion for the Project, annual audited financial
statements with respect to the Project that have been reviewed by an independent certified
public accountant, together with an expressed written opinion of the certified public
accountant that such financial statements present the financial position, results of operations, and
cash flows fairly and in accordance with generally accepted accounting principles.
" Operating Budget" and "Annual Budget" shall mean the annual operating
budget for the Project that sets forth the projected Operating Expenses for the upcoming year that is
subject to and shall be submitted for review and approval by the Deputy City Manager or
his /her designee, in his /her reasonable discretion, each year during the Affordability Period
pursuant to the Agreement.
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"Operating Expenses" shall mean actual, reasonable and customary (for
comparable high quality rental housing developments in Orange County) costs, fees and
expenses directly incurred, paid, and attributable to the operation, maintenance and management of
the Project in a, calendar year, and which is reasonably consistent with the annual Operating
Budget for the Project approved by City pursuant to the Agreement, including: painting,
cleaning, repairs, alterations, landscaping, utilities, refuse removal, certificates, permits and
licenses, sewer charges, real and personal properly taxes, assessments, insurance, security,
advertising and promotion, janitorial services, cleaning and building supplies, purchase, repair,
servicing and installation of appliances, equipment, fixtures and furnishings, fees and expenses of
property management, fees and expenses of accountants, attorneys and other professionals, the cost
of social services and other housing supportive services provided at the Project consistent with
Borrower's approved Tax Qedit Applications to TCAC for the Project, repayment of any
completion or operating loans made to Borrower, and other actual, reasonable and customary
operating costs and capital costs which are directly incurred and paid by Borrower, but which are not
paid from or eligible to be paid from the Capital Replacement Reserve or any other reserve
accounts for the Project. To the extent the Operating Expenses for the Project are not reasonably
consistent with the annual Operating Budget for a given year, the City Manager shall reasonably
review and approve to confirm such Operating Expenses are reasonable and actually incurred;
provided, no approval shall be required for emergency expenditures reasonably necessary or
appropriate to preserve life, limb, or property.
Operating Expenses shall exclude all of the following: (i) salaries of employees of
Borrower or Borrower's general overhead expenses, or expenses, costs and fees paid to an
Affiliate of Borrower, to the extent any of the foregoing exceed the expenses, costs or fees that
would be payable in a bona fide arms' length transaction between unrelated parties in the Orange
County area for the same work or services; (ii) any amounts paid directly by a tenant of the
Rental Portion of the Project to a third party in connection with expenses which, if incurred by
Borrower, would be Operating Expenses; (iii) optional or elective payments with respect to
financing approval pursuant to the Agreement (the "Senior Loan") (unless made with the consent of
the City Manager in her reasonable discretion); (iv) expenses, expenditures, and charges of any
nature whatsoever arising or incurred by Borrower prior to completion of the Project with respect to
the development, maintenance and upkeep of the applicable the Project, or any portion thereof,
including, without limitation, all costs and capitalized expenses incurred by Borrower in connection
with the acquisition of the Site from the City (e.g. not leasing to low income tenants), all
predevelopment and preoonstruction activities conducted by Borrower in connection with the
Project, including, without limitation, the preparation of all plans and the performance of any
tests, studies, investigations or other work, and the construction of the Project and any on -site or
off-site work in connection therewith; (vi) depreciation, amortization, and accrued principal and
interest expense on deferred payment debt; and (vii) any partnership related fees to the extent
they are not paid as capitalized expenses.
"Partnership Agreement" means the most current partnership agreement between
the Borrower and the Investor Limited Partner.
of:
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"Residual Receipts" shall mean Amoral Project Revenue for the Project less the sum
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25B -14
(i) Operating Expenses;
(ii) Debt Service;
(iii) Reserve Deposits to the Capital Replacement Reserve;
(iv) Borrower paid Expenses, including without limitation, an asset
management or similar fee paid to the Borrower's investor limited partner or its affiliate in amounts
not to exceed $5,000 per year escalating at 3% amntally (provided, however, such fee shall only be
payable during the fifteen (15) -year compliance period as described in Section 42(i)(1) of the Code)
and a partnership management fee or similar fee paid to the managing general partner of Borrower in
amounts not to exceed $25,000 per year escalating at 3% annually;
(v) Unpaid Tax Credit adjustment amounts, if any (after review and
reasonable verification by City Manager of documents provided by Borrower showing propriety of
such amounts and payments);
(vi) Repayment of loans, if any, made by the limited partner(s) of
Borrower, including interest at the Applicable Federal Rate (the propriety of any such loans must be
reasonably verified by City Manager);
(vii) Property management fee for the Project which remains unpaid after
payment of Operating Expenses, if any;
(viii) Deferred Developer Fee for the Project which remains unpaid, if any,
including interest at the Applicable Federal Rate, if applicable;
(ix) Repayment of outstanding development and operating loans, if any,
made by the administrative and /or managing general partners and/or the Guarantors to the Project,
including interest at the Applicable Federal Rate (the propriety of any such loans pursuant to the
terms of the Partnership Agreement must be reasonably verified by City Manager); and
(x) Capital contributions to the Project, if any, made by the general
partners or managing member, as applicable, of Borrower that were used to pay the Borrower Fee.
5. Security. This Note is secured by a Deed of Trust (the "Deed of Trust ") dated as of
the same date as this Note.
6. Nonrecourse. This Note shall constitute a nonrecourse obligation of Borrower.
Neither Borrower, not any of its partners (general or limited) shall have any personal liability for
payment or performance of this Note. In the event of a default hereunder, the City's sole
recourse shall be to proceed against the collateral described in the Deed of Trust.
Waivers.
a. Borrower expressly agrees that this Note or any payment hereunder may be
extended from time to time at the City's sole discretion and that the City may accept security in
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1076 \49 \18433112
25B -15
consideration for any such extension or release any security for this Note at its sole discretion all
without in any way affecting the liability of Borrower.
b. No extension of time for payment of this Note made by agreement by the
City with any person now or hereafter liable for the payment of this Note shall operate to release,
discharge, modify, change or affect the original liability of Borrower order this Note, either in
whole or in part,
C. The obligations of Borrower under this Note shall be absolute and
Borrower waives any and all rights to offset, deduct or withhold any payments or charges due
under this Note for any reasons whatsoever.
d. Borrower waives presentment, demand, notice of protest and nonpayment,
notice of default or delinquency, notice of acceleration, notice of costs, expenses or leases or
interest thereon, notice of dishonor, diligence in collection or in proceeding against any of the
rights of interests in or to properties securing of this Note, and the benefit of any exemption
under any homestead exemption laws, if applicable.
C. No previous waiver and no failure or delay by City in acting with respect to
the terms of this Note or the Deed of Trust shall constitute a waiver of any breach, default, or
failure or condition under this Note, the Deed of Trust or the obligations secured thereby. A
waiver of any terns of this Note, the Deed of Trust or of any of the obligations secured thereby
rust be made in writing and shall be limited to the express written terms of such waiver.
8. Attorneys' bees and Costs. Borrower agrees that if any amounts due under this
Note are not paid when due, to pay in addition, all costs and expenses of collection and
reasonable attorneys' fees paid or incurred in connection with the collection or enforcement of
this Note, whether or not suit is filed.
9. Joint and Several Obligation. This Note is the joint and several obligation of all
makers, sureties, guarantors and endorsers, and shall be binding upon them and their heirs,
successors and assigns.
10. Amendments and Modifications. This Note may not be changed orally, but
only by an amendment in writing signed by Borrower and by the City.
11. City May Assign. City may, at its option, assign its right to receive payment
under this Note without necessity of obtaining the consent of the Borrower.
12. Borrower Assignment Prohibited. In no event shall Borrower assign or transfer
any portion of this Note without the prior express written consent of the City, which consent
shall not unreasonably be withheld, except pursuant to a transfer which is permitted or approved
pursuant to the terms of the Agreement.
13. Terms. Any terms not separately defined herein shall have the same meanings as
set forth in the Agreement.
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14. Acceleration and Other Remedies. Upon: (a) the occurrence of an event of
Default as defined in the Agreement and delivery of notice and expiration of the cure period
described therein, or (b) Borrower selling, contracting to sell, giving an option to purchase,
conveying, leasing, farther encumbering, mortgaging, assigning or alienating the Borrower's
interest in the Project (other than as permitted or approved pursuant to the Agreement), whether
directly or indirectly, whether voluntarily or involuntarily or by operation of law, or any interest in
the Project, or suffering its title, or any interest in the Project to be divested, whether
voluntarily or involuntarily, without the consent of the City or as otherwise approved or
permitted under the Agreement, City may, at City's option, declare the outstanding principal
amount of this Note, together with the then accrued and unpaid interest thereon and other charges
hereunder, and all other sums secured by the Deed of Trust, to be due and payable immediately,
and upon such declaration, such principal and interest and other sums shall immediately become
and be due and payable without demand or notice, all as further set forth in the Deed of Trust.
All costs of collection, including, but not limited to, reasonable attorneys' fees and all expenses
incurred in connection with protection of, or realization on, the security for this Note, may be
added to the principal hereunder, and shall accrue interest as provided herein. City shall at all
times have the right to proceed against any portion of the security for this Note in such order and
in such manner as such City may consider appropriate, without waiving any rights with respect
to any of the security. Any delay or omission on the part of the City in exercising any right
hereunder, under the Agreement or under the Deed of Trust shall not operate as a waiver of such
right, or of any other right, No single or partial exercise of any right or remedy hereunder or
under the Agreement or any other document or agreement shall preclude other or further
exercises thereof, or the exercise of any other right or remedy. The acceptance of payment of
any sum payable hereunder, or part thereof, attar the due date of such payment shall not be a
waiver of City's right to either require prompt payment when due of all other sums payable
hereunder or to declare an event of Default for failure to make prompt or complete payment.
15. Permissible Refinancing. The Borrower shall only be permitted to refinance
under the following circumstances, after obtaining prior approval of the Deputy City Manager or
his/her designee:
a. refinance in order to obtain a better /lower interest rate; or
b. refinance for major rehabilitation/repairs necessary to preserve the Property.
16. Successors and Assigns, Whenever "City" is referred to in this Note,
such reference shall be deemed to include the City of Santa Ana and its successors and
assigns, including, without limitation, any subsequent assignee or holder of this Note. All
covenants, provisions and agreements by or on behalf of Borrower, and on behalf of any
makers, endorsers, guarantors and sureties hereof which are contained herein shall inure to
the benefit of the City and City's successors and assigns.
17. Buy Out Option. In the event that there is a decision to sell the Property to an
outside entity not affiliated with the Developer, its Managing General Partner or its
Administrative General Partner, the Managing General Partner of Borrower or its affiliate
Orange Housing Development Corporation shall be given the first right of refusal or the General
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25B -17
Partners may exercise the purchase option pursuant to the Borrower's Partnership Agreement.
If neither of these options or the right of first refusal are exercised by the General Partners of
Borrower, then the City shall have the second right of refusal.
18. Miscellaneous. Time is of the essence hereof This Note shall be governed
by and. construed under the laws of the State of California except to the extent Federal laws
preempt the laws of the State of California. Borrower irrevocably and unconditionally
submits to the jurisdiction of the Superior Court of the State of California for the
County of Orange in connection with any legal action or proceeding arising out of or relating
to this Note. Borrower also waives any objection regarding personal or in rem jurisdiction or
venue.
,Signatures on Following Page
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1076 \49 \1843311.2
25B -18
IN WITNESS WHEREOF, Borrower has executed this City Promissory Note as
of the date set forth hereinabove.
BORROWER:
Depot at Santiago, LP, 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 corporation, its sole member
0
Eunice Robert, Chief Executive Officer
By: C &C Depot, LLC,
a California limited 'liability company,
its administrative general partner
By: C & C Development Co., LLC,
a California limited liability company, its sole member
M
0
Todd R. Cottle, its member
Bany A. Cottle, Trustee of The Cottle Family Trust
Dated 3/8/1987, its member
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25B -20