HomeMy WebLinkAboutD-1849 Village at Broad Street Recorded 11/25/20091
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Recording requested by
FIRST AMERICAN TITLE CO
4001- 3ZS81086g)
WHEN RECORDED RETURN TO:
City of San Luis Obispo
990 Palm Street
San Luis Obispo, Ca. 93401
Attn: City Clerk
JULIE R1 BE111�D
AB
San Luis Obispo County- ClerklRecorder 11/25/2009
Recorded at the request of 11:38 AM
First American Title Company i
The undersigned declare that there is no documentary
transfer tax on this matter.
zaosossasa
Titles: 4 Pages: 1 9
Fees
0.00
Taxes
0.00
Others
0.00
PAID
$0.00
Recorded for the Benefit of the
City of San Luis Obispo at No Fee Under
Section 27383 of the Government Code
SUBORDINATE DEED OF TRUST, DEED OF TRUST COVENANTS,
ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING
THIS SUBORDINATE DEED OF TRUST, DEED OF TRUST COVENANTS,
ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING (this
"Deed of Trust ") is made as of this ;ZDw" day of November, 2009, by Village at Broad
Street Family Housing, L.P., a California limited partnership ( "Trustor "), the owner of the
real property described herein below, whose address is:
2201 Emily Street, San Luis Obispo, California
To FIRST AMERICAN TITLE COMPANY, a California corporation ( "Trustee ")
in favor of the CITY OF SAN LUIS OBISPO, a municipal corporation, whose address is
990 Palm Street, San Luis Obispo, California 93401 ('Beneficiary").
WHEREAS, Trustor desires to develop a 41 -unit apartment complex ( "Project ") on certain real
property located in the County of San Luis Obispo, State of California, which is further described
in Exhibit A (the "Real Property ").
WHEREAS, the City Council of the City of San Luis Obispo approved the Project pursuant to
Resolution No. 10109 (2009) (the "Resolution ").
WHEREAS; to implement the Resolution, Beneficiary and Trustor entered into an Agreement to
Provide -Affordable Rental. Housing (004- 845 - 009)( "Affordability Agreement ") on the date
hereof
WHEREAS, to implement the Resolution, Beneficiary has agreed to make a loan to Trustor in
the amount of One Million, Thirty=Four Thousand, Four Hundred and Forty-Eight Dollars
($1,034,448:00) for the purposes of financing acquisition costs relating to the Real Property and
58541 \1'52669v2
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Deed of Trust, Village at Broad Street Family Housing, L.P.
Page 2
1 predevelopment costs relating to the Project, and Trustor has delivered that certain Promissory
2 Note ( "Note ") in favor of Beneficiary on the date hereof.
3
4 WHEREAS, Beneficiary and Trustor desire to ensure that the Real Property remain affordable to
5 moderate - income persons pursuant to the Affordability Agreement.
6
7 NOW, THEREFORE, THIS DEED OF TRUST WITNESSETH:
8
9 Trustor, in consideration of the indebtedness referred to below and the trust herein created,
10 irrevocably grants, conveys, transfers and assigns to Trustee, and its successors and assigns, in
11 trust, with power of sale and right of entry and possession, all of Trustor's estate, right, title and
12 interest in, to and under the Real Property;
13
14 TOGETHER WITH all structures and improvements now existing or hereafter erected on the
15 Real Property", all easements, rights and appurtenances thereto or used in connection therewith,
16 all rents, royalties, issues, profits, revenues, income and other benefits thereof or arising from the
17 use or enjoyment of all or any portion thereof (subject, however, to the right, power and authority
18 given herein to Trustor to collect and apply such rents, royalties, issues, profits, revenues, income
19 and other benefits prior to an Event of Default hereunder), all interests in and rights, royalties and
20 profits in connection with all minerals, oil and gas and other hydrocarbon substances thereon or
21 therein, development rights or credits, air rights, water, water rights (whether riparian,
22 appropriative or otherwise and whether or not appurtenant) and water stock, all intangible
23 property and rights relating to the Real Property or the operation thereof or used in connection
24 therewith, including, without limitation, trade names and trademarks and all furniture and
25 fixtures, now or hereafter located in, or on, or attached or affixed to, or used or intended to be
26 used in connection with, the Real Property, including, but without limitation, all heating,
27 lighting, laundry, incinerating, gas, electric and power equipment, pipes, plumbing, fire
28 prevention and fire extinguishing, refrigerating, ventilating and communication apparatus, air
29 cooling and air conditioning apparatus, shades, awnings, blinds, curtains, drapes, attached floor
30 coverings, including rugs and carpeting and other installed appliances, attached cabinets, trees,
31 plants and other items of landscaping, shall, to the fullest extent permitted by law and for the
32 purposes of this Deed of Trust, be deemed to be part and parcel of, and appropriated to the use
33 of, the Real Property and, whether .or not affixed or annexed, thereto, be deemed conclusively to
34 be real property and conveyed by this Deed of Trust, and Trustor agrees to execute and deliver,
35 from time to time, such further instruments and documents as may be required by Beneficiary to
36 confirm the lien of this Deed of Trust on any of the foregoing;
37
38 TOGETHER WITH all of the estate, interest, right, title, other claim or demand which Trustor
39 now has or may hereafter acquire in any and all awards made for the taking by eminent domain,
40 or by any proceeding or purchase in lieu thereof, of the whole or any part of the Property (as
41 hereinafter defined), including, without limitation, any awards resulting from a change of grade
42 of streets and awards for severance damages;"
43
44 TOGETHER WITH all of the estate, interest, right, title and other claim or demand which
45 Trustor now has or may hereafter acquire with respect to the unearned premiums accrued,
58541C152669v2 2
Deed of Trust, Village at Broad Street Family Housing, L.P.
Page 3
1 accruing or to accrue and the proceeds of insurance in effect with respect to all or any part of the
2 foregoing. All of the foregoing property referred to in this Deed of Trust, together with the Real
3 Property, is herein referred to as the "Property."
4
5 ARTICLE 1. PURPOSE AND CONSIDERATION. This trust deed is established for the
6 purpose of securing, in such order of priority as Beneficiary may elect:
7
8 (a) The repayment of the indebtedness evidenced by Trustor's Promissory Note (the
9 "Note ") of even date herewith payable to the order of Beneficiary, in the principal sum of
10 One Million, Thirty -Four Thousand, Four Hundred and Forty-Eight Dollars
11 ($1,034,448:00) ( "Principal "), and any and all late charges, interest costs or fees required
12 thereunder and all extensions, renewals, modifications, amendments and replacements
13 thereof.
14
15 (b) The payment of all other sums which may be advanced by or otherwise be due to
16 Trustee or Beneficiary under any provision of this Deed of Trust with interest (if any)
1.7 thereon at the rate provided herein or therein.
18
19 (c) Performance of all covenants of Trustor made in this Deed of Trust.
20
21 (d) Performance of all obligations and conditions of the Affordability Agreement.
22
23 ARTICLE 2. DEED COVENANTS. To protect the security of this Deed of Trust, Trustor and
24 Trustee hereby covenant and agree as follows:
25
26 SECTION 2.01. Restrictions on Use and Occupancy. The Real Property shall be used for
27 rental housing, consistent with the Affordability Agreement.
28
29 SECTION 2.02. Term of Use and Occupancy Restrictions. Trustor agrees that the above
30 restrictions to the use and occupancy of the Real Property shall remain in effect for a period of
31 fifty -five (55) years from the date of the property's initial,_ purchase by Trustor.
32
33 SECTION 2.03. Covenants Binding. These affordability requirements shall be covenants
34 running with the land as defined in California Civil Code Section 1460, and shall apply to the
35 Real Property as further described on Exhibit A. Pursuant to Civil Code Section 1468, which
36 governs such covenants, the provisions of this Deed ' of Trust shall be binding upon all parties
37 having any right, title, or interest in any of the properties described herein, or any portion thereof
38 and on their heirs, successors in interest and assigns for a period of 55 years from the initial date
39 of purchase of the Real Property by Trustor. The parties agree that all future deeds or transfers of
40 interest regarding the properties shall show the restrictions of this Deed of Trust for as long as the
41 Agreement is in effect.
42
43 ' SECTION 2.04. Performance of Obligations Secured. Trustor shall promptly pay when due
44 the indebtedness evidenced by the Note and any late charges, costs and/or fees provided for in the
58541 \152669v2 3
Deed of Trust, Village at Broad Street Family Housing, L.P.
Page 4
1 Note and shall further perform fully and in a timely manner all other obligations of Trustor
2 contained herein or in the Note.
3
4 ARTICLE.3 — INSURANCE REQUIREMENTS
5
6 SECTION 3.01. Trustor shall keep the Property and all improvements thereon insured against
7 loss or damage by fire with extended all -risk coverage clauses, including vandalism and
8 malicious mischief clauses, in an amount not less than one,hundred percent (100 %) of the full
9 replacement cost of such improvements with a company or companies and in such form and with
10 such endorsements as may be approved or reasonably required by Beneficiary.
11
12 SECTION 3.02. Trustor shall also maintain in full force and effect a policy of homeowners'
13 general liability insurance insuring Trustor against liability for bodily injury, property damage
14 and personal injury arising out of the operation, use or occupancy of the Property. The initial
15 amount of such insurance shall be One Hundred Thousand Dollars ($100,000.00) per occurrence
16 and not in the aggregate and shall be subject to periodic increase based upon increased liability
17 awards or the reasonable recommendation of Trustor's professional insurance advisor. Trustor
18 shall name Beneficiary as an additional insured under such policy. Such insurance shall be
19 primary with respect to any insurance maintained by Beneficiary and shall not call on
20 Beneficiary's insurance for contributions.
21
22 SECTION 3.03. Trustor shall pay all premiums for the insurance policies required to be
23 maintained under this Deed of Trust within fifteen (15) days after Trustor's receipt of a copy of
24 the premium statement or other evidence of the amount due. At least thirty (30) days prior to the
.25 expiration of such policy, Trustor shall deliver to Beneficiary a renewal of such policy.
26
27 SECTION 3.04. Any insurance which Trustor is required to maintain under this Deed of Trust
28 shall include a provision requiring that the insurance carrier give Beneficiary not less than thirty
29 (30) days written notice prior to any cancellation or modification of such coverage. If Trustor (i)
30 fails to deliver any policy or renewal to Beneficiary required under this Deed of Trust within the
31 prescribed time period or (ii) if any such policy is canceled or modified to reduce the amount or
32 type of coverage without Beneficiary's consent and no substituted comparable coverage is
33 obtained by Trustor prior to such cancellation or modification, Beneficiary may obtain such
34 insurance. In such case, Trustor shall reimburse Beneficiary for the cost of such insurance within
35 fifteen (15) days after receipt of a statement that indicates the cost of such insurance and upon
36 proof that Beneficiary has paid said statement.
37
38 SECTION 3.05. [ Trustor shall maintain all insurance required under this Deed of Trust with
39 companies holding a "general policy rating" of A -8 or better, as set forth in the most current issue
40 of "Best Key Rating Guide." Beneficiary makes no representation as to the adequacy of such
41 insurance to protect Trustor's or Beneficiary's interests. Therefore, Trustor shall obtain any
42 additional property or liability insurance that Trustor deems necessary to protect Beneficiary and
43 Trustor, in the exercise of reasonable judgment.
44
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Deed of Trust, Village at Broad Street Family Housing, L.P.
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1 SECTION 3.06. Notwithstanding anything to the contrary contained herein, Trustor's obligation
2 to carry the insurance provided for herein may be brought within the coverage of a so- called
3 blanket policy or policies of insurance carried and maintained by Trustor; provided, however;
4 that Beneficiary shall be named as an additional insured thereunder and that the coverage
5 afforded Beneficiary will not be reduced or diminished by reason of the use of such blanket
6 policy of insurance and provided further that the requirements set forth herein are otherwise
7 satisfied.
8
9 SECTION 3.07. All of the above - mentioned insurance policies or certificates of insurance must
10 be reasonably satisfactory to Beneficiary. Beneficiary shall not by the fact of approving,
11 disapproving, accepting, preventing, obtaining or failing to obtain any insurance, incur any
12 liability for or with respect to the amount of insurance carried, the form or legal sufficiency of
13 insurance contracts, insolvency of insurance companies or payment or defense of lawsuits and
14 Trustor hereby expressly assumes full responsibility therefor and all liability, if any, with respect
15 thereto.
16
17 SECTION 3.08. Condemnation and Insurance Proceeds.
18
19 SUBSECTION 3.08(a). Any award of damages in connection with any taking or condemnation,
20 or for injury to the Property by reason of public use, or for damages for private trespass or entry
21 onto the Property is hereby assigned and shall be paid to Beneficiary as further security for all
22 obligations secured by this Deed of Trust. Upon receipt of such proceeds, Beneficiary may hold
23 the proceeds as further security or apply or release them in the same manner and with the same
24 effect as provided in this Deed of Trust for the disposition of proceeds of fire or other insurance.
25
26 SUBSECTION 3.08(b). Any insurance proceeds or awards in connection with any casualty or
27 damage or injury to the Property covered by insurance ( "Insurance Proceeds ") are hereby
28 assigned to Beneficiary to be held and applied by Beneficiary in the manner hereinafter provided.
29 Beneficiary may, at its option, and at its own expense, appear in and prosecute in its own name
30 any action or proceeding to enforce any cause of action for such Insurance Proceeds. All
31 Insurance Proceeds shall be applied by Beneficiary upon any indebtedness secured by this Deed
32 of Trust and in any order determined by Beneficiary or, at the option of Beneficiary, the entire
33 amount so collected or any part of that amount may be released to Trustor. This application or
34 release shall not cure or waive any default or notice of default under this Deed of Trust or
35 invalidate any act done pursuant to such notice.
36
37 SUBSECTION 3.08(c). Trustor, immediately upon obtaining knowledge of the institution of any
38 proceedings relating to condemnation or other taking of or damage or injury to the Property or
39 any portion thereof, or knowledge of any casualty damage to the Property or damage in any other
40 manner; shall immediately notify Beneficiary in writing. Beneficiary may participate, at its own
41 expense, in any such proceedings and may join Trustor in adjusting any loss covered by
42 insurance.
43
44 ARTICLE 4. TAXES, LIENS AND OTHER ITEMS. Trustor shall pay, when due, all taxes,
45 bonds, assessments, fees, liens (including prior trust deed liens), charges, fines, impositions and
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Deed of Trust, Village at Broad Street Family Housing, L.P.
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1 any and all other items which are attributable to or affect the Property and which may attain a
2 priority over this Deed of Trust or the indebtedness or evidence of indebtedness secured hereby,
3 by making payment prior to delinquency directly to the payee thereof. Trustor may initiate
4 proceedings to contest any such taxes, bonds, assessments, fees, liens, charges, fines, impositions
5 or other items so long as Trustor takes steps to ensure that Beneficiary's security is not threatened
6 in any manner. Trustor shall pay all costs of the proceedings, including any costs or fees incurred
7 by Beneficiary. Upon the final determination of any proceeding or contest, Trustor shall
8 immediately pay the amounts due, together with all costs, charges, interest and penalties
9 incidental to the proceedings.
10
11 ARTICLE 5. PRESERVATION AND MAINTENANCE OF PROPERTY. Trustor shall
12 keep the Property and every part thereof in good condition and repair and shall not permit or
13 commit any waste, impairment or deterioration of the Property nor commit, suffer or permit any
14 act upon or use of the Property in violation of law or applicable order of any governmental
15 authority, whether now existing or hereafter enacted and whether foreseen or unforeseen,
16 including, without limitation, violation of any zoning, building or environmental protection
17 statutes, ordinances, regulations, orders and restrictions or in violation of any covenants,
18 conditions or restrictions affecting the Property or bring or keep any article upon any of the
19 Property or cause or permit any condition to exist thereon which would be prohibited by or could
20 invalidate any insurance coverage maintained or required hereunder to be maintained by Trustor
21 on or with respect to any part of the Property and further shall do all other acts which from the
22 character or use of the Property may be reasonably necessary to protect the security hereof, the
23 specific enumerations herein not excluding the general. Trustor shall completely restore and
24 repair promptly and in a good and workmanlike manner any building, structure or improvement
25 thereon which may be damaged or destroyed and pay, when due, all claims for labor performed
26 and materials famished therefor, whether or not insurance or other proceeds are available to
27 cover, in whole or in part, the costs of any such restoration or repair. Trustor shall notify
28 Beneficiary immediately in writing of any damage to the Property in' excess of Ten Thousand
29 Dollars ($10,000.00).
30
31 ARTICLE 6. PROTECTION OF SECURITY: COSTS AND EXPENSES. Trustor shall
32 appear in and defend any action or proceeding purporting to affect the security hereof or the
33 rights or powers of Beneficiary or Trustee and shall pay all reasonable costs and expenses,
34 including, without limitation, costs of evidence of title and reasonable attorney's fees, in any such
35 action or proceeding in which Beneficiary or Trustee may appear and in any suit brought by
36 Beneficiary to foreclose this Deed of Trust or to enforce or establish any other rights or remedies
37 of Beneficiary hereunder. If Trustor fails to perform any of the covenants or agreements in this
38 Deed of Trust or if any action or proceeding is commenced which affects Beneficiary's interest in
39 the Property or any part thereof, including, but not limited to, eminent domain, code enforcement
40 or proceedings of any nature whatsoever under any federal or state law, whether now existing or
41 hereafter enacted or amended, relating to bankruptcy, insolvency, arrangement, reorganization or
42 other form of debtor relief, or to a decedent, then Beneficiary or Trustee may, but without
43 obligation to do so and upon ten (10) days' prior written notice to and demand upon Trustor
44 (unless a shorter notice period is reasonably necessary to protect Beneficiary's interest in the
45 ' security hereof, in which case only reasonable notice and demand under the circumstances shall
58541 \152669v2 6
Deed of Trust, Village at Broad Street Family Housing, L.P.
Page 7
1 be required) and without releasing Trustor from any obligation hereunder, make such
2 appearances, disburse such sums and take such action as Beneficiary or Trustee deems necessary
3 or appropriate to protect Beneficiary's interest, including, but not limited to, disbursement of
4 reasonable attorney's fees, entry upon the Property to make repairs or otherwise protect the
5 security hereof, and payment, purchase, contest or compromise of any encumbrance, charge or
6 lien which in the judgment of either Beneficiary or Trustee appear to be prior or superior hereto.
7 Trustor further agrees to pay all reasonable expenses of Beneficiary (including fees and
8 disbursements of counsel) reasonably related to the protection of the rights of Beneficiary
9 hereunder, and enforcement or collection of payment of the Note, whether by judicial or
10 non judicial proceedings, or in connection with any bankruptcy, insolvency, arrangement,
11 reorganization or other debtor relief proceeding of Trustor, or otherwise. Beneficiary shall give
12 Trustor ten (10) days' prior written notice before disbursing any amounts pursuant to this Article.
13 Any amounts disbursed by Beneficiary or Trustee pursuant to this Section shall be additional
14 indebtedness of Trustor secured by this Deed of Trust as of the date of disbursement. All such
15 amounts shall be payable by Trustor immediately without demand. Nothing contained herein
16 shall be construed to require Beneficiary or Trustee to incur any expense, make any appearance
17 or take any other action.
18
19 ARTICLE 7. ENFORCEMENT.
20
21 Acknowledgement of Enforceability. Trustor represents, warrants, covenants and agrees that
22 it is the lawful owner of the Real Property and that it has good right and lawful authority to
23 encumber the same as provided herein; that the Real Property is free from any and all liens and
24 encumbrances excepting only such as have been approved by Beneficiary and that Trustor
25 warrants and will defend the title to the Property against all claims and demands whatsoever not
26 specifically excepted herein (and except for claims and demands arising from acts or omissions
27 of Beneficiary or any predecessor -in- interest to Beneficiary not previously disclosed to Trustor),
28 and Trustor will execute, acknowledge and deliver all and every such further assurances unto
29 Beneficiary of the title to the Property hereby conveyed and intended so to be or that Trustor may
30 be or shall become hereinafter bound so to do. Trustor covenants and warrants that the Note and
31 this Deed of Trust are valid and enforceable obligations of Trustor in accordance with the terms
32 thereof and hereof, and that this Deed of Trust does no nor does the Note, nor does the
33 performance or observance by Trustor of any of the matters or things in the Note or this Deed of
34 Trust, contravene any covenant in any indenture or agreement affecting Trustor.
35
36 ARTICLE 8. EVENTS OF DEFAULT. Each of the following shall constitute an event of
37 default ( "Event of Default ") hereunder (including, if Trustor consists of more than one person or
38 entity, the occurrence of any of such events with respect to any one or more of such persons or
39 entities):
40
41 SECTION 8.01. Breach of Covenants. Default and the failure to cure within the applicable
42 cure period by Trustor in the performance of any of the covenants or agreements of Trustor
43 contained herein, in the Note, in the Affordability Agreement or any other note or instrument,
44 trust deed or other obligation of Trustor secured by any part of or all of the Property, whether
45 junior or senior to this Deed of Trust. Unless otherwise provided in this Deed of Trust, any
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Deed of Trust, Village at Broad Street Family Housing, L.P.
Page 8
i default or failure to perform any covenant under this Deed of Trust shall not be an Event of
2 Default if it is cured within thirty (30) days after written notice thereof given by the Beneficiary,
3 provided, however, that if such failure to perform shall not be reasonably susceptible of cure
4 within such 30 -day period, such failure shall not constitute an Event of Default if Trustor shall
5 commence to cure such failure within such 30 -day period and diligently prosecute such cure to
6 completion; provided, however, any such cure shall be completed within one hundred and twenty
7 (120) days from the date of such written notice.
8
9 SECTION 8.02. Appointment of Trustee. The appointment pursuant to an order of a court of
10 competent jurisdiction, of a trustee, receiver or liquidator of the.Property or any part thereof, or
11 of Trustor, or any termination or voluntary suspension of the transaction of business of Trustor,
12 or any attachment, execution or other judicial seizure of all or any substantial portion of Trustor's
13 assets; provided, however, that if such attachment, execution or seizure is involuntary, Trustor
14 shall not be deemed in default unless the same is not discharged within ninety (90) days.
15
16 SECTION 8.03. Bankruptcy Filing. The filing by or against Trustor of a petition in bankruptcy
17 or for an arrangement or for reorganization or for other form of debtor relief pursuant to the
18 • federal Bankruptcy Act, as the same may be amended or replaced from time to time, or any other
19 law, federal or state, whether now existing or hereafter amended or enacted relating to insolvency
20 or debtor relief (except that in the case of a filing against Trustor, an Event of Default shall not
21 exist unless Trustor fails to have the proceeding stayed within ninety (90) days after such filing),
22 or the adjudication of Trustor as a bankrupt or an insolvent by a decree of a court of competent
23 jurisdiction, or the making of an assignment for the benefit of creditors, or the admission by
24 Trustor in writing of its inability to pay its debts generally as they become due, or the giving of
25 consent by Trustor to the appointment of a receiver or receivers of all or substantially all of its
26 property.
27
28 SECTION 8.04. Misrepresentations. Any representation or disclosure made to Beneficiary by
29 Trustor as an inducement to the making of the loan evidenced by the Note that proves to be false
30 or misleading in any material respect as of the time the same was made, whether or not any such
31 representation or disclosure appears as part of this Deed of Trust.
32
33 SECTION 8.05. Other Events. Any other event which, under this Deed of Trust, or under the
34 Note or the Agreement, constitutes an Event of Default by Trustor hereunder or thereunder or
35 gives Beneficiary the right to accelerate the maturity of the indebtedness, or any part thereof,
36 secured hereby.
37
38 ARTICLE 9. REMEDIES. Upon the occurrence and during the continuance of any Event of
39 Default and the expiration of any. applicable period within which to cure the same, Trustee and
40 Beneficiary shall have the following rights and remedies:
41
42 SECTION 9:01. Acceleration. Beneficiary may declare the entire outstanding Principal and all
43 other - sums or payments required hereunder to be due and payable immediately and
44 notwithstanding the date such sums would otherwise be due in accordance with the Note and the
45 Agreement.
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Page 9
1 -
2 SECTION 9.02. Entry. Whether or not Beneficiary exercises the right provided in Section 9.01
3 above, Beneficiary, in person or by agent or court- appointed receiver, may enter upon, take
4 possession of, manage and operate the Property or any part thereof and do all things necessary or
5 appropriate in Beneficiary's sole discretion in connection therewith, including, without limitation,
6 making and enforcing, and if the same -be subject to modification or cancellation, modifying or
7 canceling leases upon such terms or conditions as Beneficiary deems proper, obtaining and
8 evicting tenants, and fixing or modifying rents, contracting for and making repairs and
9 alterations, and doing any and all other acts which Beneficiary deems proper to protect the
10 security hereof, and either with or without so taking possession, in its own name, in the name of
11 Trustor or by court- appointed receiver (which may be appointed on notice or on ex parte
12 application without notice), suing for or otherwise collecting and receiving the rents and profits,
13 including those past due and unpaid, and applying the same less costs and expenses of operation
14 and collection, including reasonable attomey's fees, upon any indebtedness secured hereby and in
15 such order as Beneficiary may determine. Upon request of Beneficiary, Trustor shall assemble
16 and make available to Beneficiary at the site of the Real Property any of the Property which has
17 been removed therefrom. The entering upon and taking possession of the Property, or any part
18 thereof, the collection -of any rents and profits and the application thereof as aforesaid shall not
19 cure or waive any Event of Default theretofore or thereafter occurring or affect any notice or
20 Event of Default or notice, and, notwithstanding continuance in possession of the Property or any
21 part thereof by Beneficiary, Trustor or a receiver, and the collection, receipt and application of
22 the rents and profits, Beneficiary shall be entitled to exercise every right provided for in this
23 Deed of Trust or by law or in equity upon or after the occurrence of an Event of Default,
24 including, without limitation, the right to exercise the power of sale. Any of the actions referred
25 to in this Section may be taken by Beneficiary irrespective of whether any notice of an Event of
26 Default or election to sell has been given hereunder and without regard to the adequacy of the
27 security for the indebtedness hereby secured.
28
29 SECTION 9.03. Judicial Action. Beneficiary may bring an action in any court of competent
30 jurisdiction to foreclose this Deed of Trust or to enforce any of the covenants and agreements of
31 this Deed of Trust, or the Note and the Affordability Agreement.
32
33 SECTION 9.04. Power of Sale.
34
35 SUBSECTION 9.04(a).. Beneficiary may elect to cause the Property or any part thereof to be
36 sold under the power of sale herein granted in any manner permitted by applicable law. In
37 connection with any sale or sales hereunder, Beneficiary may elect to treat any of the Property
38 that consists of a right in action or that is property that can be severed from the Real Property or
39 any improvements thereon without causing structural damage thereto as if the same were
40 personal property and dispose of the same in accordance with applicable law, separate and apart
41 from the sale of the Real Property.
42
43 SUBSECTION 9.04(b). Trustee may, and upon request of Beneficiary shall, from time to time,
44 postpone any sale hereunder by public announcement thereof at the time and place noticed
45 therefor. If the Property consists of several items of property, Beneficiary may designate the order
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Page 10
1 in which such items shall be offered for sale or sold. Any person, including Trustor, Trustee or
2 Beneficiary, may purchase at any sale hereunder, and Beneficiary shall have the right to purchase
3 at any sale hereunder by crediting upon the bid price the amount of all or any, part of the
4 indebtedness hereby secured.
5
6 SUBSECTION 9.04(c). Should Beneficiary , desire that.more than one sale or other disposition of
7 the Property be conducted, Beneficiary may, at its option, cause the same to be conducted
8 simultaneously, or successively, on the same day, or at such different days or times and in such
9 order as Beneficiary may deem to be in its best interests, and no such sale shall terminate or
10 otherwise affect the lien of this Deed of Trust on any part of the Property not sold until all
11 indebtedness secured hereby has been fully paid. Upon any sale hereunder, Trustee shall execute
12 and deliver to the purchaser or purchasers a deed or deeds conveying the Property so sold, but
13 without any covenant or warranty whatsoever, express or implied, whereupon such purchaser or
14 purchasers shall be let into immediate possession; and the recitals in any such deed or deeds of
15 facts, such as default, the giving of notice of default and notice of sale and other facts affecting
16 the regularity or validity of such sale or disposition, shall be conclusive proof of the truth of such
17 facts and any such deed or deeds shall be conclusive against all persons as to such facts recited
18 therein.
19
20 SUBSECTION 9.04(d). In case of any sale of the Property pursuant to any judgment or decree of
21 any. court or at public auction or otherwise in connection with the enforcement of any of the
22 terms of this Deed of Trust, Beneficiary, its successors or assigns, may become the purchaser,
23 and for the purpose of making settlement for or payment of the purchase price, shall be entitled to
24 deliver over and use the Note, together with all other sums, with interest, advanced and unpaid
25 hereunder, in order that there may be credited as paid on the purchase price the sum then due
26 under the Note, including principal thereon and all other sums, with interest, advanced and
27 unpaid hereunder.
28
29 SECTION 9.05. Proceeds of Sale. The proceeds of any sale made under or by virtue of this
30 Article, together with all other sums that then may be held by Trustee or Beneficiary under this
31 Deed of Trust, whether under the provisions of this Article or otherwise, shall be applied as
32 follows:
33
34 (a) First, to the payment of the costs and expenses of sale and of any judicial proceedings
35 wherein the same may be made, including reasonable compensation to Trustee and Beneficiary,
36 their agents and counsel, and to the payment of all expenses, liabilities and advances made or
37 incurred by Trustee under this Deed of Trust, together with interest on all advances made by
38 .Trustee at the maximum rate permitted by law to be charged by Trustee.
39
40 (b) Second, to the payment of any and all sums expended by Beneficiary under the terms hereof
41 (including, but not limited to, sums paid by Beneficiary on the prior trust deed) not then repaid
42 and alp other sums required to be paid by Trustor pursuant to any provisions of this Deed of Trust
43 or the Note, including, without limitation, all expenses, liabilities and advances made or incurred
44 by Beneficiary under this Deed of Trust or in connection with the enforcement hereof, together
45 with interest thereon as herein provided.
58541\1 52669v2 10
Deed of Trust, Village at Broad Street Family Housing, L.P
Page 11
2 (c) Third, to the payment of the entire amount then due, .owing or unpaid upon the Note,
3 including attorney's fees and costs.
4
5 (d) Fourth, all amounts otherwise due Beneficiary.
6
7 (e) The remainder, if any, to the person or persons legally entitled thereto.
8
9 SECTION 9.06. Waiver of Marshaling. Trustor, for itself and for all persons hereafter claiming
10 through or under it or who may at any time hereafter become holders of liens junior to the lien of
11 this Deed of Trust, hereby expressly waives and releases all rights to direct the order in which
12 any of the Property shall be sold in the event of any sale or sales pursuant hereto, and to have any
13 of the Property and/or other property now or hereafter constituted security for any of the
14 indebtedness secured hereby, marshaled upon any foreclosure of this Deed of Trust or for any
15 . other security for any of said indebtedness.
16
17 SECTION 9.07. Remedies Cumulative. No remedy herein conferred upon or reserved to
18 Trustee or Beneficiary is intended to be exclusive of any other remedy herein or by law provided,
19 but each shall be cumulative and shall be in addition to every other remedy given hereunder or
20 , now or hereafter existing at law or in equity or by statute. No delay or omission of Trustee or
21 Beneficiary to exercise any right or power accruing upon any Event of Default shall impair any
22 right or power or shall be construed to be a waiver of any Event of Default or any acquiescence
23 therein; and every power and remedy given by this Deed of Trust to Trustee or Beneficiary may
24 be exercised from time to time as often as may be deemed expedient by Trustee or Beneficiary. If
25 there exists additional security for the performance of the obligations secured hereby, the holder
26 of the Note, at its sole option, and without limiting or affecting any of its rights or remedies
27 hereunder, may exercise any of the rights and remedies to which it may be entitled hereunder
28 either concurrently with whatever rights and remedies it may have in connection with such other
29 security or in such order as it may determine. Any application of any amounts or any portion
30 thereof held by Beneficiary at any item as additional security hereunder, whether pursuant to this
31 deed of trust or otherwise, to any indebtedness secured hereby shall not extend or postpone the
32 due dates of any payments due from Trustor to Beneficiary hereunder or under the Note, or
33 change the amounts of any such payments or otherwise be construed to cure or waive any default
34 or notice of default hereunder or invalidate any act done pursuant to any such default or notice. In
35 the event that Beneficiary shall have proceeded to enforce any right under this Deed of Trust by
36 foreclosure, sale, entry or otherwise, and such proceedings shall have been discontinued or
37 abandoned for any reason or shall have been determined adversely, then, and in every such case,
38 Trustor and Beneficiary shall be restored to their former positions and rights hereunder with
39 respect to -the Property subject to the lien hereof.
40
41 ARTICLE 10. MISCELLANEOUS
42
43 SECTION 10.01. Severability. In the event that any one or more of the provisions contained in
444 this Deed of Trust shall for any reason be held to be invalid, illegal or unenforceable in any
45 respect, such invalidity, illegality or unenforceability shall not affect any other provision of this
58541 \152669v2 11
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Deed of Trust, Village at Broad Street Family Housing, L.P.
Page 12 I
Deed of Trust, and this Deed of Trust shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
SECTION 10.02. Certain Charges. Trustor agrees to pay the reasonable charges of Beneficiary.
for any service rendered Trustor, or on its behalf, connected with this Deed of Trust or the
indebtedness secured hereby, including, without limitation, delivering to an escrow holder a
request for full or partial reconveyance of this Deed of Trust, transmitting to an escrow holder
moneys secured hereby, changing the records pertaining to this Deed of Trust and indebtedness
secured hereby, showing a new owner of the Property and replacing an existing policy of
insurance held hereunder with another such policy.
SECTION 10.03. Notices. All notices required or permitted to be given under this Deed of Trust
shall be in writing and shall be deemed to have been given upon (i) one business day after being
deposited with Federal Express or another reliable overnight courier service for next day
delivery; or (ii) five (5) business days after being deposited, in the United States mail, by first
class or registered or certified mail, postage prepaid, return receipt requested, and addressed as
follows (or at such other address of which said party shall have theretofore notified in writing, as
provided above, the party giving such notice):
To the Beneficiary:
City of San Luis Obispo
990 Palm Street
San Luis Obispo, Ca. 93401
Attn: Community Development Director
To the Trustee:
f-i vsf
gig► -P46 4C 51-
5H�► �C,ui s MIDI SQ o CA 4 9*61
Attn: [ ke' 01'n —IR aT ]
To the Trustor:
Village.at Broad Street Family Housing, L.P
c/o Roem Development Corporation
1650 Lafayette Street
Santa Clara, CA 95050
Attention: Jonathan Emami
With copies to:.
Cox Castle & Nicholson LLP
58541 \152669v2
12
• •
Deed of Trust, Village at Broad Street Family Housing, L.P.
Page 13
1 555 California Street, 10th Floor
2 San Francisco, CA 94104
3 Attention: Stephen C. Ryan
4
5 SECTION 10.04. Trustor Not Released. Extension of the time for payment or modification of
6 the terms of payment of any sums secured by this Deed of Trust granted by Beneficiary to any
7 successor -in- interest of Trustor shall not operate to release, in any manner, the liability of the
8 original Trustor. Beneficiary shall not be required to commence proceedings against such
9 successor or refuse to extend time for payment or otherwise modify the terms of the payment of
10 the sums secured by this Deed of Trust by reason of any demand made by the original Trustor.
1l Without affecting the liability of any person, including Trustor, for the payment of any
12 indebtedness secured hereby, or the lien of this Deed of Trust on the remainder of the Property
13 for the full amount of any such indebtedness and liability unpaid, Beneficiary and Trustee are
14 respectively empowered as follows: Beneficiary may from time to time and without notice (a)
15 release any person liable for the payment of any of the indebtedness, (b) extend the time or
16 otherwise .alter the terms of payment of any of the indebtedness, (c) accept additional real or
17 personal property of an kind as security therefor, whether evidenced by deeds of trust, mortgages,
18 security agreements or any other instruments of security, or (d) alter, substitute or release any
19 property securing the indebtedness; Trustee may, at any time and from time to time, upon the
20 written request of Beneficiary (a) consent to the making of any map or plat of the Property or any
21 part thereof, (b) join in granting any easement or creating any restriction thereon, (c) join in any
22 subordination agreement or other agreement affecting this Deed of Trust or the lien or charge
23 hereof, or (d) reconvey, without any warranty, all or part of the Property.
24
25 SECTION 10.05. Inspection. Beneficiary may at any reasonable time or times make or cause to
26 be made entry upon and inspections of the Property or any part thereof in person or by agent.
27
28 SECTION 10.06. Reconveyanee. Upon the payment in full of all sums secured by this Deed of
29 Trust, Beneficiary shall request that Trustee reconvey the Property and shall surrender this Deed
30 of Trust and Note evidencing indebtedness secured by this Deed of Trust to Trustee. Upon
31 payment of its fees and any other sums owing to it under this Deed of Trust, Trustee shall
32 reconvey the Property without warranty to the person or persons legally entitled thereto. Such
33 person or persons shall pay all costs of recordation, if any. The recitals in such reconveyance of
34 any matters of facts shall be conclusive proof of the truthfulness thereof. The grantee in such
35 reconveyance may be described as "the person or persons legally entitled thereto." Five (5) years
36 after issuance of such full reconveyance, Trustee may destroy the Note and this Deed of Trust
37 unless otherwise directed by Beneficiary.
38
39 SECTION 10.07. Interpretation. Wherever used in this Deed of Trust, unless the context
40 indicates a contrary intent, or unless otherwise specifically provided herein, the word "Trustor"
41 shall mean and include both Trustor and any subsequent owner or owners of the Property, and
42 the word 'Beneficiary" shall mean and include not only the original Beneficiary hereunder but
43 also any future owner and holder, including pledgees, of the Note secured hereby. In this Deed of
44 Trust wherever the context so requires, the masculine gender includes the feminine and/or neuter,
58541 \152669v2 13
Deed of Trust, Village at Broad Street Family Housing, L.P.
Page 14
1 and the neuter includes the feminine and/or masculine, and the singular number includes the
2 plural and conversely. In this Deed of Trust, the use of the word "including" shall not be deemed
3 to limit the generality of the term or clause to which it has reference, whether or not non - limiting
4 language (such as "without limitation," or "but not limited to" or words of similar import) is used
5 with reference thereto. The captions and heading_ s of the Articles and Sections of this Deed of
6 Trust are for convenience only and are not to be used to interpret, define or limit the provisions
7 hereof. Unless otherwise specified, in computing. any period of time described herein, the term
8 "days" means calendar days, unless the final day of any designated period of time is not a
9 "business day" (as defined below), in which case the period shall run until the end of the next
10 business day. A "business day" is any day that is not a Saturday, Sunday or legal holiday for
11 national banks located in California. The last day of any period of time described herein shall be
12 deemed to end at 5:00 p.m., Pacific Time.
13
14 SECTION 10.08. Consent. The granting or withholding of consent by Beneficiary to any
15 transaction as required by the terms hereof shall not be deem_ ed a waiver of the right to require
16 consent to future or successive transactions.
17
18 SECTION 10.09. Successors and Assigns. All of the grants, obligations, covenants,
19 agreements, terms, provisions and conditions herein shall run with the land and shall apply to,
20 bind, and inure to the benefit of the heirs, administrators, executors, legal representatives,
21 successors and assigns of Trustor and the successors -in -trust of Trustee and the endorsees,
22 transferees, successors and assigns of Beneficiary. In the event that Trustor is composed of more
23 than one party, the obligations, covenants, agreements and warranties contained herein as well as
24 the obligations arising therefrom are and shall be joint and several as to each such party.
25
26 SECTION 10.10. Governing Law. This Deed of Trust shall be governed by and construed under
27 the laws of the State of California.
28
29 SECTION 10.11. Trustor Waivers. Trustor waives the benefit of all laws now existing or that
30 hereafter may be enacted with respect to any statute of limitations for the filing of any action or
31 claims by Beneficiary.
32
33 SECTION 10.12. Subordination. This Deed of Trust shall not diminish or affect the rights of
34 the Senior Lenders (as defined below). Beneficiary and Trustor acknowledge and agree that this
35 Deed of Trust is subject and subordinate in all respects to the liens, terms, covenants and
36 conditions of the Senior Financing Documents (as defined below) and to all advances heretofore
37 made or which may hereafter be made pursuant to any of the Senior Financing Documents,
38 including all. sums advanced for the purpose of (i) protecting or further securing the lien of any of
39 the Senior Financing Documents, curing defaults by the Trustor under any of the Senior
40 Financing Documents or for any other purpose expressly permitted by any of the Senior
41 Financing Documents, or (ii) constructing, renovating, repairing, furnishing, fixturing or
42 equipping the Project or the Property. The terms and provisions of the Senior Financing
43 Documents are:paramount and controlling, and they supersede any other terms and provisions
44 hereof in conflict therewith. Trustor shall be permitted to refinance the loans evidenced by the
45 Senior Financing Documents, and this Deed of Trust shall be subject and subordinate to the liens,
58541\152669v2 14
Deed of Trust, Village at Broad Street Family Housing, L.P.
Page 15
1 terms, covenants and conditions of any such refinancings. Beneficiary shall execute instruments
2 further evidencing such subordination upon request. The "Senior Financing Documents" shall
3 mean, collectively: (a) (1) the promissory note; dated as of the date hereof, in the maximum
4 principal amount of $1,300,000 issued by Trustor and payable to San Luis Obispo County
5 Housing Trust Fund (the "First Note "), (ii) the deed of trust, dated as of the date hereof, made by
6 Trustor in favor of San Luis Obispo County Housing Trust Fund, to be recorded in the County of
7 San Luis Obispo, and (iii) all other documents executed by Trustor in connection with the loan
8 evidenced by the First Note; (b) (i) the promissory note, dated as of the date hereof, in the
9 maximum principal amount of $900,000 issued by Trustor and payable to Halferty Development
10 Company, LLC and H &D Maymont, LLC (the "Second Note "), and (ii) all other documents
11 executed by Trustor in connection with the loan evidenced by the Second Note; and (c) all
12 documents executed by Trustor in connection with any refinancings of the loan evidenced by the
13 First Note or the loan evidenced by the Second Note.
14
15 SECTION 11.13. Request for Notices of Default and Sale.
16
17 SUBSECTION 11.1.3(a). Trustor hereby requests that a copy of any notice of default and notice
18 of sale as may be required by law or by this Deed of Trust be mailed to Trustor at its address
19 above stated.
20
21 SUBSECTION 11.13(b). In accordance with Section 2924b of the California Civil Code, request
22 is hereby made that a copy of any notice of default and a copy of any notice of sale under that
23 deed trust recorded concurrently herewith, be mailed to: Community Development Director,
24 City of San Luis Obispo, 990 Palm Street, San Luis Obispo, - California 93401.
25
26 SECTION 11.14. Transfer. Trustor shall not voluntarily or involuntarily assign or otherwise
27 transfer any of its rights, duties, liabilities or obligations hereunder or under the Note without the
28 prior written consent of Beneficiary. Notwithstanding the foregoing, Trustor shall have the right
29 to sell, convey, transfer or dispose of the Property or any part thereof or any interest therein, or
30 the enter into an agreement to do so, without the prior written consent of Beneficiary, and
31 provided that such transferee agrees to assume all of the obligations of Trustor under this Deed of
32 Trust, the Note and the Affordability Agreement, Trustor shall be permitted to assign its rights,
33 duties, liabilities and obligations under this Deed of Trust, the Note and the Affordability
34 Agreement to the transferee, and the Note shall not become due and payable.
35
36 SECTION 11.15. Change of Ownership. Beneficiary acknowledges that Robert Emami and
37 Roem Development Corporation (the constituent partners of - Trustor) anticipate taking the
38 following actions concurrently with the closing of a construction loan for the Project: (a) transfer
39 ninety-nine percent (99 %) or more of the limited partnership interests in the Trustor to a tax
40 credit investor, (b) admit a nonprofit entity as a general partner of the Trustor, and (c) allow
41 Roem Development Corporation to withdraw as a general partner of the Trustor. Beneficiary
42 hereby approves such changes to Trustor's constituent partners. Any future changes in Trustor's
43 constituent partners shall not require Beneficiary's consent, so long as Trustor and the Property
44 continue to be subject to this Deed of Trust, the Note and the Affordability Agreement.
45
58541\152669v2 15
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Deed of Trust, Village at Broad Street Family Housing, L.P.
Page 16
SECTION 11.16. Attorney's Fees. In any action to interpret or enforce any provision of this
Deed of Trust, the prevailing party shall be entitled to reasonable costs and attorney's fees.
SECTION 11.17. Extended Use Agreement. In order to receive an allocation of federal low
income housing tax credits, Trustor will be required to record in the real property records of the
County in which the property is located, an "extended low - income housing commitment" (as
defined in Section 42(h)(6)(B) of the Internal Revenue Code of 1986, as amended ( "Code "))
( "Extended Use Agreement "). Beneficiary acknowledges and agrees that, in the event of a
foreclosure of its interest under this Deed of Trust or delivery by the Trustor of a deed in lieu
thereof (collectively, a. "Foreclosure "), Beneficiary agrees to comply with the following rule
contained in Section 42(h)(6)(E)(ii) of the Code: For a period of three (3) years from the date of
Foreclosure, with respect to any unit that had been regulated by the Extended Use Agreement, (i)
none of the eligible tenants occupying those units at the time of Foreclosure may be evicted or
their tenancy terminated (other than for good cause, including but not limited to, the tenants'
ineligibility pursuant to regulations of Section 42 of the Code), (ii) nor may any rent be increased
except as otherwise permitted under Section 42 of the Code.
58541\15 2660v2
[Signatures appear on the following page].
16
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Deed of Trust, Village at Broad Street Family Housing, L.P.
Page 17
IN WITNESS WHEREOF, the undersigned have executed this Deed of Trust as of the day and
year first above written.
VILLAGE AT BROAD STREET FAMILY HOUSING, L.P.,
a California limited partnership
By: Roem Development Corporation,
a California corporation, its general
partner
J
58541\152669v2
Vice President
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Deed of Trust, Village at Broad Street Family Housing, L.P.
Page 18
STATE OF CALIFORNIA )
COUNTY OF SQn� �`Qi(Q/ ) ss.
On NQVeMhMr 20, , before me, Drhem �'n aWcu Notary Public,
personally appeared LbnakhM EMML
who proved to me on the basis of satisfactory evidence to be the persono whose name(
0 is/ -arm
subscribed to the within instrument; and acknowledged to me that he /she4h@y executed the same
in his/her- authorized capacity(joo, and that by his/he4their signature(4 on the instrument
the persono, or the entity upon behalf of which the person�4 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.
MA 9 hu o, a
otary Public
STATE OF CALIFORNIA
COUNTY OF
�FAR� HEE14 GHATALA
M COMM. 140.1796807:
S NOTARY PUBLIC- CMNGRMs
3 SANTAC,ARACOUNTY 1
c0MM.EMBAvaUM012 (Seal)
�.IICMIIO
ss
)
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.
WITNESS my hand and official seal.
Notary Public
58541 \152669v2 18
(Seal)
Deed of Trust, Village at Broad Street Family Housing, L.P.
Page 19
1 EXHIBIT "A'
2
3 LEGAL DESCRIPTION OF-REAL PROPERTY
4,
5
6 Real property in the City of SAN LUIS OBISPO, County of SAN LUIS OBISPO, State of
7 California, described as follows:
8
9 Parcel 3 of Parcel Map No. SLO 04 -0160, according to Map recorded April 17, 2007 in Book 68,
10 Page 69 of Parcel Maps, in the Office of the County Recorder of the County of San Luis Obispo.
11
12. APN: 004 - 845 -009
13
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15
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17
18
'19
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21
22
23
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25
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27
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29 -
30
31
58541\152,669v2 19
END OF DOWAENT