HomeMy WebLinkAboutD-1871 2201 Emily Street Recorded 07/09/2010.i' 4.
1 RECORDING REQUESTED BY:
FIRST ANIERiC N TITLE C0! ifR N-Y
2
3 A100 - N401150Z>
4 WHEN RECORDED RETURN TO:
5
6 City of San Luis Obispo
7 990 Palm Street
8 San Luis Obispo, CA 93401
9 Attn: City Clerk
i
DG
JULIE n' 1i
San 'Luis Obispo County- Clerk/Recorder 7/09/2010
Recorded at the request of
2:41 PM
First American Title Company.
M Do,c #: 2010032001
Titles: 1, Pages: 12
Fees 0.00
Taxes 0:00
Others 0.00
PAID $0.00
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11 Recorded for the Benefit of the
12 City of San Luis Obispo at No Fee Under
13 Section 27383 of the Government Code
14
15 The undersigned declare that there is no documentary
16 transfer tax on this matter.
17
18 FIRST AMENDMENT TO
19 SUBORDINATE DEED OF TRUST, DEED OF TRUST COVENANTS,
20 ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING
21
22 THIS FIRST AMENDMENT TO SUBORDINATE DEED OF TRUST, DEED OF
23 TRUST COVENANTS, ASSIGNMENT OF RENTS; SECURITY AGREEMENT AND
24 FIXTURE FILING (this "Amendment ") is made as of this q day of July, 2010, by
25 and between VILLAGE AT BROAD STREET FAMILY HOUSING, L.P., a California
26 limited partnership ( "Trustor "), the owner of the real property described herein below,
27 whose address is:
28
29 2201 Emily Street, San Luis Obispo, California
30
31 And the CITY OF SAN LUIS OBISPO, a municipal corporation, whose address is 990
32 Palm Street, San Luis Obispo, California 93401 (`Beneficiary").
33
34 WHEREAS, on November 20, 2009, Trustor executed in favor of Beneficiary that certain
35 Subordinate Deed of Trust, Deed of Trust Covenants, Assignment of Rents, Security Agreement
36 and Fixture Filing, and recorded in the Official Records of the County of San Luis Obispo on
37 November 25, 2009, as Document No. 2009065490 (the "Deed of Trust ") to secure a loan from
38 Trustor to Beneficiary in the original principal amount of One Million Thirty Four Thousand
39 Four Hundred Forty Eight Dollars ($1,034,448), which loan is evidenced by that certain
40 Promissory Note, dated November 20, 2009 in favor of Beneficiary ( "Prior Note "), all for
41 purposes of developing a 42 -unit apartment complex ( "Project') on certain real property located
42 in the County of San Luis Obispo, State of California, which is further described in Exhibit A
43 (the "Real Property ").
44
45 WHEREAS, Trustor is executing and delivering a certain Amended and Restated Promissory
46 Note, dated as of the date of this Amendment, in the original principal amount of One Million
47 Nine Hundred Five Thousand Eight Hundred and Nine Dollars ($1,905;809.00) for the benefit of
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First Amendment to Deed of Trust, Village at Broad Street Family Housing, L.P.
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Beneficiary (the "Amended Note "), which Amended Note amends, restated and supersedes in its
entirety the Prior Note.
WHEREAS, Beneficiary and Trustor now desire to amend the Deed of Trust pursuant to the
terms of this Amendment, for purposes of reflecting the terms of the revised loan from
Beneficiary to Trustor evidenced by the Amended Note.
8 NOW, THEREFORE, in consideration of the covenants and agreements contained herein and for
9 other good and valuable consideration, the receipt and adequacy of which is hereby
10 acknowledged, Trustor and Beneficiary agree as follows:
11
12 1. INCORPORATION OF RECITALS. The definitions set forth in the foregoing Recitals
13 above are hereby expressly incorporated into this Amendment by reference.
14
15 2. PROMISSORY NOTE. From and after the date hereof, (a) all references to the "Note" or
16 the "Promissory Note" in the Deed of Trust shall mean the Amended Note, as the same may from
17 time to time be further amended, modified, extended, renewed, replaced or supplemented; (b) all
18 referenced to the "Principal" shall be to the original principal amount of the Amended Note, and
19 any and all late charges, interest costs or fees required thereunder and all extensions, renewals,
20 modifications, amendments and replacements thereof, and (c) and all references to the amount of
21 the loan evidenced by the "Note in the Deed of Trust shall be replaced with a reference to the
22 amount of the loan evidenced by the Amended Note.
23
24 3. AMENDMENT TO SECTION 10.12. Section. 10. 12 of the Deed of Trust is hereby
25 deleted in its entirety and replaced with the following:
26
27 "SECTION 10.12. Subordination. This Deed of Trust shall not diminish or affect the
28 rights of the Senior Lender (as defined below). Beneficiary and Trustor acknowledge and
29 agree that this Deed of Trust is subject and subordinate in all respects to the liens, terms,
30 covenants and conditions of the Senior Financing Documents (as defined below) and to
31 all advances heretofore made or which may hereafter be made pursuant to any of the
32 Senior Financing Documents, including all sums advanced for the purpose of (i)
33 protecting or further securing the lien of any of the Senior Financing Documents, curing
34 defaults by the Trustor under any of the Senior Financing Documents or for any other
35 purpose expressly permitted by any of the Senior Financing Documents, or (ii)
36 constructing, renovating, repairing, furnishing, fixturing or equipping the Project or the
37 Property. The terms and provisions of the Senior Financing Documents are paramount
38 and controlling, and they supersede any other terms and provisions hereof in conflict
39 therewith. Trustor shall be permitted to refinance the loans evidenced by the Senior
40 Financing Documents, and this Deed of Trust shall be subject and subordinate to the
41 liens, terms, covenants and conditions of any such refinancings. Beneficiary shall execute
42 instruments further evidencing such subordination upon request. No such refinancings
43 shall cause the Amended Note to come due, it being acknowledged and agreed that the
44 Amended Note shall be due and payable only on the Maturity Date set forth therein, so
45 long as so long as no Event of Default thereunder shall have occurred and be continuing.
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First Amendment to Deed of Trust, Village at Broad Street Family Housing, L.P.
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and be continuing. The "Senior Financing Documents" shall mean, collectively: (a) that
certain Multifamily Construction Note, dated as of the date hereof, in the maximum
principal amount of $10,755,000 issued by Trustor and payable to Citibank, N.A.
( "Senior Lender ") (the "Construction Note "), (b) that certain Multifamily Permanent
Note, to be issued by Trustor in favor of Senior Lender concurrently with the retirement
of the Construction Note, in a principal amount not to exceed $3,000,000 (the
"Permanent Note "); (c) the Multifamily Deed of Trust, Assignment of Rents, Security
Agreement and Fixture Filing, dated as of the date hereof, made by Trustor in favor of
Senior Lender, to be recorded in the County of San Luis Obispo; (d) all other documents
executed by Trustor in connection with the loans evidenced by the Construction Note and
the Permanent Note; and (e) all documents executed by Trustor in connection with any
refinancings of the loans evidenced by the Construction Note or the Permanent Note.
4. NEW SECTIONS 15, 16, 17 and 18. The following Sections 15, 16, 17 and 18 are
hereby added to the Deed of Trust:
"SECTION 15. Notice and Cure Rights. Beneficiary hereby agrees that any cure of
any default under the Deed of Trust or the Amended Note made or tendered by a limited
partner of Trustor shall be deemed to be a cure by Trustor and shall be accepted or
rejected on the same basis as if made or tendered by Trustor. Copies of all notices which
are sent to Trustor under the terms of the Deed of Trust or the Amended Note shall also
be sent to Alliant Asset Management Company, LLC at 21600 Oxnard Street, Suite 1200,
Woodland Hills, California 91367, Attn: Brian Goldberg.
SECTION 16. Insurance and Condemnation Proceeds. In the event of any fire or
other casualty to the Project or eminent domain proceedings resulting in condemnation of
the Project, or any part thereof, Trustor shall have the right to rebuild the Project, and to
use all available insurance or condemnation proceeds therefor, provided that (a) such
proceeds are sufficient to keep the loan in balance and rebuild the Project in a manner
that provides adequate security to Beneficiary for repayment of the Loan, or if such
proceeds are insufficient then Trustor shall have funded any deficiency, (b) Beneficiary
shall have the right to approve plans and specifications for any major rebuilding and the
right to approve disbursements of insurance or condemnation proceeds for rebuilding
under a construction escrow or similar arrangement, and (c) no continuing material
default then exists by Trustor under the Deed of Trust or the Amended Note. If the
casualty or condemnation affects only part of the Project and total rebuilding is
infeasible, then proceeds may be used for partial rebuilding and partial repayment of the
loan in a manner that provides adequate security to Beneficiary for repayment of the
remaining balance of the loan.
SECTION 17. Right of First Refusal. The execution and delivery of a right of first
refusal agreement between Beneficiary and its non - profit general partner shall not
constitute a default under the Deed of Trust or the Amended Note or accelerate the
maturity of the loan thereunder. Any requisite consent of Beneficiary to (a) the exercise
of such right of first refusal by the optionee thereunder and (b) the assumption without
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First Amendment to Deed of Trust, Village at Broad Street Family Housing, L.P.
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1 penalty of the loan obligations by the optionee thereunder, and the release of Trustor from
2 such obligations, shall not be unreasonably withheld. Subject to any such consent
3 requirement, the exercise of the rights under such right of first refusal agreement shall not
4 constitute a default or accelerate the maturity of this loan.
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SECTION 18. Commercial Space; Condominium Map; Partial Reconveyance.
Following the date hereof, Trustor intends to create a condominium (the
"Condominium ") on the Real Property. The Condominium will be comprised of a total
of three units: two condominium unit consisting of the residential units ( "Residential
Parcels ") and one condominium unit consisting of the retail units (the "Retail Parcel ";
and together with the Residential Parcels and the common elements, collectively, the
"Parcels "). Trustor shall be permitted to lease the Retail Parcel or sell the Retail Parcel,
so long as such lease or sale has been approved by the Senior Lender and disclosed to
Beneficiary. At Trustor's request upon the closing of the sale of the Retail Parcel,
Beneficiary will issue a partial reconveyance of the Retail Parcel from the Deed of Trust,
so long as all of the following conditions are satisfied at the time of, and with respect to,
the partial reconveyance: (i) The condominium map, the condominium plan, covenants,
conditions and restrictions ( "CC &Rs "), and all other documents necessary for the proper
subdivision or creation of the condominium modules for the Project shall have been
approved by Beneficiary, Senior Lender, and all governmental agencies or authorities
requiring such approval, and duly recorded in the official records of San Luis Obispo
County, California; (ii) the CC &Rs or the deed conveying the Retail Parcel shall provide
that the Retail Parcel shall be used for commercial, retail, office, food use, and service -
oriented uses. and shall prohibit the following uses: (a) gaming, betting, gambling or
anything similar thereto; (b) adult oriented products or entertainment, including, without
limitation, any wholesale or retail stores, services, clubs, theaters, movie stores or other
business or service relating to the adult oriented industry; (c) any use which would be
patently offensive to the members of the community in which the Condominium is
located; and (d) any business, service or other enterprise which is unlawful or would
permit unlawful conduct therein; (iii) Beneficiary shall have received at Trustor's sole
cost and expense, such title endorsements or title policies as Beneficiary may request, in
form and substance satisfactory to Beneficiary, reflecting the condominium ownership
structure of the Project and insuring the continuing second - priority lien of the Deed of
Trust as against the Project; (iv) no Event of Default has occurred and is continuing, and
no event has occurred that with notice or the passage of time could become an Event of
Default, under the Amended Note or the Deed of Trust; (v) Beneficiary has been paid, in
immediately available funds, the costs of preparing and delivering the partial
reconveyance and of any title insurance endorsements required by Beneficiary and any
other sums then due and payable under the Amended Note, if any; (vi) all escrow, closing
and recording costs have been fully paid at no expense to Beneficiary; (vii) Trustor shall
have given, or shall cause the escrow agent effecting the sale to give, to Beneficiary a
written request for the partial reconveyance accompanied by evidence, information and
other items reasonably required by Beneficiary, not less than ten (10) days prior to the
desired reconveyance date; (viii) the Retail Parcel, the remaining portion of the Project,
the reconveyance and the conveyance shall be in compliance with all applicable zoning,
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First Amendment to Deed of Trust, Village at Broad Street Family Housing, LP.
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1 land use and other governmental rules and regulations of all governmental authorities;
2 and (ix) the buyer of the Retail Parcel shall have been approved by Beneficiary.
3 Beneficiary will have no obligation to release the Retail Parcel, or to deposit any
4 instrument or notice in any escrow for any such release, if there exists any default, Event
5 of Default, or event that with the giving of notice or passage of time, or both, could
6 constitute a default or Event of Default under the Amended Note or this Deed of Trust.
7. The execution of a sales agreement will not, by itself; satisfy the conditions for release of
8 the Retail Parcel being sold; all said conditions must be satisfied in full at the time the
9 Retail Parcel is to be released. Beneficiary's acceptance of any payment or issuance of
10 any partial reconveyance shall not affect Trustor's obligation to repay all amounts owing
11 _ under the Amended Note or secured by the Deed of Trust on the remaining Property not
12 reconveyed."
13
14 5. REAFFIRMATION. _ Except as specifically set forth herein, each of the terms and
15 conditions of the Deed of Trust remain unmodified and in full force and effect, and are hereby
16 ratified and confirmed, and all of which are applicable to this Amendment as if the provisions
17 hereof were incorporated into the Deed of Trust when the same was executed and delivered.
18
19 6. NO WAIVER. This Amendment shall not be deemed a waiver of any right or remedy of
20 Beneficiary under the Deed of Trust.
21
22 7. RULES OF CONSTRUCTION. This Amendment and the rights and liabilities of the
23 parties to this Amendment shall be governed by the laws of the State of California. This
24 Amendment shall inure to the benefit of, and shall be binding upon, the successors and assigns of
25 each of the parties to this Amendment.
26
27 8. COUNTERPARTS. This Amendment may be executed in any number of identical
28 counterparts and each counterpart shall be deemed to be an original document. All executed
29 counterparts together shall constitute one and the same document and any counterpart signature
30 pages may be detached and assembled to form a single original document.
31
32
33 [Signatures appear on the following page]
60888 \4003986v4 5
First Amendment to Deed of Trust, Village at Broad Street Family Housing, L.P.
Page 6
i IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the day and
2 year first above written.
3
4 TRUSTOR:
5
6 VILLAGE AT BROAD STREET FAMILY HOUSING, L.P.,
7 a California limited partnership
8
9 By: Pacific Housing, Inc.,
10 a California no ofit public benefit corporation_,
I 1 its Managin neral Part
12
13 By:
14 ark A. Wiese, President
15
16 By: ROEM Broad Street Family, LLC,
17 a California limited liability company,
18 its Co- General Partner
19
20 By:
21 Jonathan Emami, Manager
22
23 BENEFICIARY:
24
25 CITY OF SAN LUIS OBISPO,
26 a municipal corporation and charter city in the State of California
27
28 By:
29 Katie Lichtig, City Manager
30
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32 APPROVED-AS TO FORM:
33
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36 Christine Dietrick, City Attorney Date
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First Amendment to Deed of Trust, Village at Broad Street Family Housing, L.P.
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the day and
year first above written.
TRUSTOR:
VILLAGE AT BROAD STREET FAMILY HOUSING, L.P.,
a California limited partnership
By: Pacific Housing, Inc.,
a California nonprofit public benefit corporation,
its Managing General Partner
I0s
Mark A. Wiese, President
By: ROEM Broad Street Family, LLC,
a California limited liability company,
its Co- General Pa ner
By:
Jonothan Pkmami, Manager
BENEFICIARY:
CITY OF SAN LUIS OBISPO,
a municipal corporation and charter city in the State of California
By:
Katie Lichtig, City Manager
APPROVED AS TO FORM:
Christine Dietrick, City Attorney
60888 \4003986x4
Date
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First Amendment to Deed of Trust, Village at Broad Street Family Housing, L.P.
Page 6
1 IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the day and
2 year first above written.
3
4 TRUSTOR:
5
6 VILLAGE AT BROAD STREET FAMILY HOUSING, L.P.,
7 a California limited partnership
8
9 By: Pacific Housing, Inc.,
10 a California nonprofit public benefit corporation,
1 l its Managing General Partner
12
13 By:
14 Mark A. Wiese, President
15
16 By: ROEM Broad Street Family, LLC,
17 a California limited liability company,
18 its Co- General Partner
19
20 By:
21 Jonathan Emami, Manager
22
23 BENEFICIARY:
24
25 CITY OF SAN LUIS OBISPO,
26 a munic' al corpor on and charter city in the State of California
27
28 By:
29 Kate Lichtig, tityi.4anager
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31
ro-
32 APPROVED ;S TO
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34
3J
35 C istine Dietrick, City Attorney Date
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First Amendment to Deed of Trust, Village at Broad Street Family Housing, L.P.
Page 7
STATE OF CALIFORNIA )
SS
COUNTY OF - )
On 3a �VI� of a me, Notary Public,
personally appeared -
who proved to me on the basis of satisfactory evidence to be the person44 whose name(s*is/am-
subscribed to the within instrument, and acknowledged tome that he /94eAkey- executed the same
in hisAierrftlreir authorized capacity(i6s-)s and that by hiss signature(e-) on the instrument
the persor�, or the entity upon behalf of which the person(} 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.
W SS my hand and official seal.
Notary Public
STATE OF CALIFORNIA )
COUNTY OF )
ss
MR MBAM
Olin 6�lIO0 f 18
f,► PUM1c • cam.
son ftaim Coump
Comm. E*m Jun 8, 2012
(Seal)
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
6088841003986v4
7
(Seal)
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First Amendment to Deed of Trust, Village at Broad Street. Family Housing, L.P.
Page 7
STATE OF CALIFORNIA )
ss
COUNTY OF
C,
On (ufr, 24, 2DID before me, Wm Notary Public,
personally appeared �brnt6`w Errlam� ,
who proved to me on the basis of satisfactory evidence to be the person whose name(g) is /ate
subscribed to the within instrument, and acknowledged to me that he /sloe- executed the same
in his/her authorized capacity, and that by his/h€.r4heir. signatureA on the instrument
the person(,, or the entity upon behalf of which the person($) 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
7rjy-
STATE OF CALIFORNIA )
COUNTY OF )
�tlP000009610y00iY0000L10E10
FARHEEN GHATA�
'• COMM. NO. 1796907A
1 NOTmYPu9UC•CAI.IFORNIAs
SANTACWACOUNTY s
CAMM. EXPIRES APRIL 28, 2012 =
fbeuuuo®reaumne��o••..�,ir� roeemumoweeis
ss
(Seal)
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
60888 \4003986x4 7
(Seal)
��uN�u��ruii�llll!�Uu' dkllil city or SM curs OBISPO
990 Palm Street, San Luis Obispo, CA 93401-31249 %
STATE OF CALIFORNIA )
)ss
COUNTY OF SAN LUIS OBISPO )
On June 24, 2010, before me Elaina Cano, City Clerk, personally appeared Katie Lichtig, City
Manager, CITY OF SAN LUIS OBISPO, who proved to me on the basis of satisfactory evidence
to be the per oM whose name is /a# subscribed to a within instrument and acknowledged
to me that P /she/ y executed the same in 1�/her /th it authorized capacity(ie#), and that by
�es/her /th r signae ) on the instrument the perso (, or the entity upon behalf of which the
rson(�('acted, executed the instrument.
r'
I. certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
Witness my hand and official seal.
Signature
City Clerk.
(Seal)
eeO� The City of San Luis Obispo is committed to include the disabled in all of its services, programs and activities.
�y Telecommunications Device for the Deaf (805) 781 -7410.
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First Amendment to Deed of Trust, Village at Broad Street Family Housing, L.P.
Page 8
EXHIBIT "A'
LEGAL DESCRIPTION OF REAL PROPERTY
Real property in the City of SAN LUIS OBISPO, County of SAN LUIS OBISPO, State of
California, described as follows:
PARCEL 3 OF PARCEL MAP NO. SLO 04 -0160, IN THE CITY OF SAN LUIS OBISPO,
COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA, ACCORDING TO MAP
RECORDED APRIL 17, 2007 IN BOOK 68, PAGES 69 AND 70 OF PARCEL MAPS,
AMENDED BY CERTIFICATE OF CORRECTION RECORDED OCTOBER 16, 2007 AS
INSTRUMENT NO. 07- 69068, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
APN: 004 - 845 -009
6088814003986v4 8
END OF DOCUMENT