Loading...
HomeMy WebLinkAboutSubordination Agreement RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Sheppard, Mullin, Richter& Hampton LLP 333 South Hope Street, 43rd Floor Los Angeles, CA 90071 Attention: Caroline Woolsey, Esquire THIS SPACE ABOVE FOR RECORDER'S USE SUBORDINATION AGREEMENT (City of Arroyo Grande) THIS SUBORDINATION AGREEMENT (this "Agreement") is entered into as of the /S+ day of fl1��tj , 2015 by and among (i) BANK OF AMERICA,N.A., its successors and assigns (the "Senior Lender"), (ii) CITY OF ARROYO GRANDE, a California municipal corporation ("Subordinate Lender"), and (iii) COURTLAND STREET APARTMENTS, L.P., a California limited partnership (the "Borrower"). Recitals A. The Senior Lender has made or is making a permanent loan (the "Permanent Loan") to the Borrower in the aggregate original principal amount of $1,530,560.00. The Permanent Loan is or will be secured by a mortgage lien (the "Permanent Mortgage") on a multifamily housing project located in the City of Arroyo Grande, San Luis Obispo County, California (the "Property"). The Property is more fully described in Exhibit A attached hereto. The Borrower's obligation to repay the Permanent Loan is evidenced by (i)that certain Amended and Restated Promissory Note (Term Only)(Tranche A) dated of even date herewith (the "Tranche A Permanent Note") and (ii) that certain Amended and Restated Promissory Note (Term Only) (Tranche B) dated as of even date herewith (the "Tranche B Permanent Note" and, together with the Tranche A Permanent Note, collectively, the "Permanent Note") in the aggregate principal amount of the Permanent Loan. B. The Borrower has requested the Senior Lender to permit the Subordinate Lender to retain on title against the Property that certain subordinate loan to Borrower in the principal amount of Four Hundred Thousand and No/100 Dollars ($400,000) (the "Subordinate Loan"). The Subordinate Loan is secured by a Deed of Trust with Assignment of Rents dated as of August 13, 2013, executed by Borrower for the benefit of Subordinate Lender and recorded September 4, 2013 in the Official Records as Instrument No. 2013051251 ("Subordinate Mortgage"), pursuant to that certain Affordable Housing and Loan Agreement dated as of March 8, 2011 (as amended from time to time, the "Subordinate Loan Agreement") entered into by and between the former Arroyo Grande Redevelopment Agency, a public body corporate and politic ("Agency"), and Peoples' Self-Help Housing Corporation, which was assigned to Borrower. SMRH:437071559.3 1 C. Pursuant to Assembly Bill 26 from the 2011-12 First Extraordinary Session of the California Legislature, which was signed by the Governor on June 28, 2011 ("ABx1 26"), all redevelopment agency activities, except continued performance of "enforceable obligations," were immediately suspended. A lawsuit was filed, challenging the constitutionality of ABx1 26 and companion bill ABx1 27 (which would have allowed redevelopment agencies to remain in existence and continue redevelopment, if the legislative bodies that established the agencies elected to participate in a "voluntary alternative redevelopment program" and make certain remittance payments). The California Supreme Court upheld the constitutionality of ABx1 26, revising the effective dates of certain provisions, and struck down as unconstitutional ABx1 27. (California Redevelopment Assn. v. Matosantos (2011) 53 Ca1.4th 231 (the "CRA Case"). ABx1 26 is chapter 5, Statutes 2011, First Extraordinary Session, which added Part 1.8 (suspension provisions) and Part 1.85 (dissolution provisions) ("Part 1.85") of Division 24 of the Health and Safety Code. Under the CRA Case, all redevelopment agencies dissolved February 1, 2012. On June 27, 2012, the California Legislature passed, and the Governor signed, Assembly Bill 1484 ("AB 1484"), which, among other things, made certain revisions to certain of the statutes added by ABx1 26, and added Chapter 9 to Part 1.85. D. Pursuant .to Health and Safety Code section 34176(a), added by Part 1.85 and amended by AB 1484, the City Council of the City of Arroyo Grande adopted its Resolution No. 4421 on January 10, 2012, electing to retain the housing assets and functions previously performed by the Agency. Pursuant to said resolution, all housing assets of the Agency were transferred to Subordinate Lender on February 1, 2012. Pursuant to subdivision (e)(2) of Health and Safety Code section 34176, which subdivision was added by AB 1484,the Subordinate Loan proceeds are one of the "housing assets" of the Agency that was so transferred to Subordinate Lender. E. The Senior Lender has agreed to permit the Subordinate Lender to retain the Subordinate Loan and to retain the Subordinate Mortgage lien against the Property subject to all of the conditions contained in this Agreement. NOW, THEREFORE, in order to induce the Senior Lender to permit the Subordinate Lender to retain the Subordinate Loan and to retain the Subordinate Mortgage lien against the Property, and in consideration thereof, the Senior Lender, the Subordinate Lender and the Borrower agree as follows: 1. Definitions. In addition to the terms defined in the Recitals to this Agreement, for purposes of this Agreement the following teims have the respective meanings set forth below: "Affiliate" means, when used with respect to a Person, any corporation, partnership,joint venture, limited liability company, limited liability partnership, trust or individual controlled by, under common control with, or which controls such Person (the term "control" for these purposes shall mean the ability, whether by the ownership of shares or other equity interests, by contract or otherwise, to elect a majority of the directors of a corporation, to make management decisions on behalf of, or independently to select the managing partner of, a partnership, or otherwise to have the power SMRH:437071559.3 2 independently to remove and then select a majority of those individuals exercising managerial authority over an entity, and control shall be conclusively presumed in the case of the ownership of 50% or more of the equity interests). "Borrower" means the Person named as such in the first paragraph of this Agreement and any other Person (other than the Senior Lender) who acquires title to the Property after the date of this Agreement. "Business Day" means any day other than Saturday, Sunday or a day on which the Senior Lender is not open for business. "City Regulatory Agreement" means that certain Regulatory Agreement and Declaration of Covenants and Restrictions which was recorded in the Official Records on April 3, 2013, as Instrument No. 2013-018875. "City Regulatory Agreement Default" means a default by the Borrower in performing or observing any of the terms, covenants or conditions in the City Regulatory Agreement to be performed or observed by it, which continues beyond any applicable period provided in the City Regulatory Agreement for curing the default. "Default Notice" means: (a) a copy of the written notice from the Senior Lender to the Borrower stating that a Permanent Loan Default has occurred; or (b) a copy of the written notice from the Subordinate Lender to the Borrower stating that a Subordinate Loan Default has occurred under the Subordinate Loan and/or that a City Regulatory Agreement Default has occurred under the City Regulatory Agreement. Each Default Notice shall specify the default upon which such Default Notice is based. "Official Records" mean the Official Records of San Luis Obispo County, California. "Permanent Loan Default" means the occurrence of an "Event of.Default" as that term is defined in the Permanent Loan Documents. "Permanent Loan Documents" means the Permanent Note, the Permanent Mortgage and all other documents evidencing, securing or otherwise executed and delivered in connection with the Permanent Loan. "Permanent Mortgage" means that certain Multifamily Deed of Trust Assignment of Rents, Security Agreement and Fixture Filing delivered by Borrower to Senior Lender and encumbering the Property to secure the obligations of Borrower under the Permanent Note dated as of March 28, 2013 and recorded in the Official Records on April 3, 2013 as Instrument No. 2013-018877. "Permanent Note" has the meaning given to such term in Recital A. "Person" means an individual, estate, trust, partnership, corporation, limited liability company, limited liability partnership, governmental department or agency or any other entity which has the legal capacity to own property. SMRH:437071559.3 3 "Senior Lender" means the Person named as such in the first paragraph on page 1 of this Agreement. When any other Person becomes the legal holder of the Pelinanent Note, such other Person shall automatically become the Senior Lender. "Senior Loan Documents" means the Permanent Loan Documents. "Subordinate Lender" means the Person named as such in the first paragraph on page 1 of this Agreement and any other Person who becomes the legal holder of the Subordinate Note after the date of this Agreement. "Subordinate Loan Agreement" has the meaning set forth for such term in Recital B. "Subordinate Loan Default" means a default by the Borrower in performing or observing any of the terms, covenants or conditions in the Subordinate Loan Documents to be performed or observed by it, which continues beyond any applicable period provided in the Subordinate Loan Documents for curing the default. "Subordinate Loan Documents" means the Subordinate Loan Agreement, Subordinate Note, the Subordinate Mortgage, and, with the exception of the City Regulatory Agreement, all other documents evidencing, securing or otherwise executed and delivered in connection with the Subordinate Loan. Notwithstanding anything herein to the contrary, the City Regulatory Agreement shall not constitute one of the Subordinate Loan Documents. "Subordinate Mortgage" means that certain Deed of Trust with Assignment of Rents dated as of August 13, 2013 and recorded in the Official Records on September 4, 2013 as Instrument No. 2013051251. "Subordinate Note" means that certain Promissory Note Secured by Deed of Trust with Assignment of Rents issued by the Borrower to the Subordinate Lender, or order, to evidence the Subordinate Loan. 2. Permission to Place Mortgage Lien Against Property. The Senior Lender agrees, notwithstanding the prohibition against inferior liens on the Property contained in the Pelluanent Loan Documents and subject to the provisions of this Agreement, to permit the Subordinate Lender to retain the Subordinate Mortgage and other recorded Subordinate Loan Documents against the Property (which are subordinate in all respects to the liens of the Pelluanent Mortgage) to secure the Borrower's obligation to repay the Subordinate Note and all other obligations, indebtedness and liabilities of the Borrower to the Subordinate Lender under and in connection with the Subordinate Loan. Such permission is subject to the condition that each of the representations and warranties made by the Borrower and the Subordinate Lender in Section 3 is true and correct on the date of this Agreement and on the date on which the proceeds of the Subordinate Loan are disbursed to the Borrower. If any of the representations and warranties made by the Borrower and the Subordinate Lender in Section 3 is not true and correct on both of those dates, the provisions of the Permanent Loan Documents SMRH:437071559.3 4 applicable to unpermitted liens on the Property shall apply with respect to the Subordinate Mortgage. 3.2 Borrower's, Senior Lender's and Subordinate Lender's Representations and Warranties. The Borrower and the Subordinate Lender each makes the following representations and warranties to the Senior Lender: (a) Intentionally Omitted. (b) Relationship of Borrower to Subordinate Lender. The Subordinate Lender is not an Affiliate of the Borrower. (c) Term. The teuu of the Subordinate Note does not end before the term of the Permanent Note. (d) Subordinate Loan Documents and City Regulatory Agreement. The executed Subordinate Loan Documents and City Regulatory Agreement are substantially in the same forms as those submitted to, and approved by, Senior Lender, and as executed and delivered to Senior Lender prior to the date of this Agreement. The Borrower and the Senior Lender each makes the following representations and warranties to the Subordinate Lender: (a) Senior Loan Documents. The executed Senior Loan Documents are substantially in the same forms as those submitted to Subordinate Lender, and as executed and delivered to Subordinate Lender prior to the date of this Agreement. (b) Relationship of Borrower to Senior Lender. The Senior Lender is not an Affiliate of the Borrower. 4. Terms of Subordination. (a) Agreement to Subordinate. The Senior Lender and the Subordinate Lender agree that: (i) the indebtedness evidenced by the Subordinate Loan Documents is and shall be subordinated in right of payment, to the extent and in the manner provided in this Agreement to the prior payment in full of the indebtedness evidenced by the Permanent Loan Documents, and (ii) the Subordinate Mortgage and the other Subordinate Loan Documents are and shall be subject and subordinate in all respects to the liens, tent's, covenants and conditions of the Permanent Mortgage, the other Permanent Loan Documents and to all advances heretofore made or which may hereafter be made pursuant to the Peimanent Mortgage, the other Permanent Loan Documents (including but not limited to, all sums advanced for the purposes of (1)protecting or further securing the lien of the Peimanent Mortgage, curing defaults by the Borrower under the Permanent Loan Documents or for any other purpose expressly permitted by the Peimanent Mortgage, or (2) constructing, renovating, repairing, furnishing, fixturing or equipping the Property). SMRH:437071559.3 5 (b) Subordination of Subrogation Rights. The Subordinate Lender agrees that if, by reason of its payment of real estate taxes or other monetary obligations of the Borrower, or by reason of its exercise of any other right or remedy under the Subordinate Loan Documents, it acquires by right of subrogation or otherwise a lien on the Property which (but for this subsection) would be senior to the lien of the Peinianent Mortgage, then, in that event, such lien shall be subject and subordinate to the lien of the Permanent Mortgage. (c) Payments Before Permanent Loan Default. Until the Subordinate Lender receives a Default Notice of a Peixnanent Loan Default from the Senior Lender, the Subordinate Lender shall be entitled to retain for its own account all payments made under or pursuant to the Subordinate Loan Documents. (d) Payments After Permanent Loan Default. The Borrower agrees that, after it receives notice (or otherwise acquires knowledge) of a Permanent Loan Default, it will not make any payments under or pursuant to the Subordinate Loan Documents (including but not limited to principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Subordinate Mortgage) without the Senior Lender's prior written consent. The Subordinate Lender agrees that, after it receives a Default Notice from the Senior Lender with written instructions directing the Subordinate Lender not to accept payments from the Borrower on account of the Subordinate Loan, it will not accept any payments under or pursuant to the Subordinate Loan Documents (including but not limited to principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Subordinate Mortgage) without the Senior Lender's prior written consent. Ifthe Subordinate Lender receives written notice from the Senior Lender that the Permanent Loan Default which gave rise to the Subordinate Lender's obligation not to accept payments has been cured, waived, or otherwise suspended by the Senior Lender, the restrictions on payment to the Subordinate Lender in this Section 4 shall terminate, and the Senior Lender shall have no right to any subsequent payments made to the Subordinate Lender by the Borrower prior to the Subordinate Lender's receipt of a new Default Notice from the Senior Lender in accordance with the provisions of this Section 4(d). (e) Remitting Subordinate Loan Payments to Senior Lender. If, after the Subordinate Lender receives a Default Notice from the Senior Lender in accordance with subsection (d) above, the Subordinate Lender receives any payments under the Subordinate Loan Documents, the Subordinate Lender agrees that such payment or other distribution will be received and held in trust for the Senior Lender and unless the Senior Lender otherwise notifies the Subordinate Lender in writing, will be promptly remitted, in kind to the Senior Lender, properly endorsed to the Senior Lender, to be applied to the principal of, interest on and other amounts due under the Permanent Loan Documents in accordance with the provisions of the Peituanent.Loan Documents. By executing this Agreement, the Borrower specifically authorizes the Subordinate Lender to endorse and remit any such payments to the Senior Lender, and specifically waives any and all rights to have such payments returned to the Borrower or credited against the Subordinate Loan. Borrower and Senior Lender acknowledge and agree that payments received by the Subordinate Lender, and remitted to the Senior Lender under this Section 4, shall not be applied or otherwise credited against the Subordinate Loan, nor shall the tender of such payment to the Senior Lender waive any Subordinate Loan Default which may SMRH:437071559.3 6 • arise from the inability of the Subordinate Lender to retain such payment or apply such payment _ to the Subordinate Loan. (f) Agreement Not to Commence Bankruptcy Proceeding. The Subordinate Lender agrees that during the teiiu of this Agreement it will not commence, or join with any other creditor in commencing any bankruptcy reorganization, arrangement, insolvency or liquidation proceedings with respect to the Borrower, without the Senior Lender's prior written consent. 5. Default Under Subordinate Loan Documents and/or City Regulatory Agreement. (a) Notice of Default and Cure Rights. The Subordinate Lender shall deliver to the Senior Lender a Default Notice within five Business Days in each case where the Subordinate Lender has given a Default Notice to the Borrower. Failure of the Subordinate Lender to send a Default Notice to the Senior Lender shall not prevent the exercise of the Subordinate Lender's rights and remedies under the Subordinate Loan Documents and/or City Regulatory Agreement (as applicable), subject to the provisions of this Agreement. The Senior Lender shall have the right, but not the obligation, to cure any Subordinate Loan Default or City Regulatory Agreement Default within sixty (60) days following the date of such notice; provided, however that the Subordinate Lender shall be entitled, during such 60-day period, to continue to pursue its rights and remedies under the Subordinate Loan Documents and/or City Regulatory Agreement (as applicable) to the extent peg pitted under Section 5(b). All amounts paid by the Senior Lender in accordance with the Permanent Loan Documents to cure a Subordinate Loan Default and/or City Regulatory Agreement Default shall be deemed to have been advanced by the Senior Lender pursuant to, and shall be secured by the lien of, the Permanent Mortgage. (b) Subordinate Lender's Agreement to Standstill. If a Subordinate Loan Default and/or City Regulatory Agreement Default occurs and is continuing, the Subordinate Lender agrees that, without the Senior Lender's prior written consent, it will not accelerate the Subordinate Loan, commence foreclosure proceedings with respect to the Property, collect rents, appoint (or seek the appointment of) a receiver or institute any other collection or enforcement action. (c) Cross Default. The Borrower and the Subordinate Lender agree that a Subordinate Loan Default or City Regulatory Agreement Default shall constitute a Permanent Loan Default under the Permanent Loan Documents and the Senior Lender shall have the right to exercise all rights or remedies under the Peiulanent Loan Documents in the same manner as in the case of any other Permanent Loan Default. If the Subordinate Lender notifies the Senior Lender in writing that any Subordinate Loan Default and/or City Regulatory Agreement Default of which the Senior Lender has received a Default Notice has been cured or waived, as determined by the Subordinate Lender in its sole discretion, then provided that Senior Lender has not conducted a sale of the Property pursuant to its rights under the Senior Loan Documents, any Permanent Loan Default arising solely from such Subordinate Loan Default and/or City Regulatory Agreement Default (as applicable) shall be deemed cured, and the Pelluanent Loan shall be reinstated, provided, however, that the Senior Lender shall not be required to return or SMRH:437071559.3 7 otherwise credit for the benefit of the Borrower any default rate interest or other default related charges or payments received by the Senior Lender during such Permanent Loan Default. 6. Default Under Permanent Loan Documents. • (a) Notice of Default and Cure Rights. The Senior Lender shall deliver to the Subordinate Lender a Default Notice within five (5) Business Days in each case where the Senior Lender has given a Default Notice to the Borrower. Failure of the Senior Lender to send a Default Notice to the Subordinate Lender shall not prevent the exercise of the Senior Lender's rights and remedies under the Permanent Loan Documents, subject to the provisions of this Agreement. The Subordinate Lender shall have the right, but not the obligation, to cure any such Permanent Loan Default within sixty (60) days following the date of such notice; provided, however, that Senior Lender shall be entitled during such 60-day period to continue to pursue its rights and remedies under the Senior Loan Documents and provided further that in the event of a non-monetary default, Subordinate Lender keeps current all payments required by the Peluianent Loan Documents. In the event that such a non-monetary default creates an unacceptable level of risk relative to the Property, or Senior Lender's secured position relative to the Property, as determined by Senior Lender in its sole discretion, then Senior Lender may exercise during such 60-day period all available rights and remedies to protect and preserve the Property and the rents, revenues and other proceeds from the Property, provided, that, Senior Lender shall provide notice to Subordinate Lender in the event of such exercise of any rights or remedies in accordance with Section 12 below. All amounts paid by the Subordinate Lender to the Senior Lender to cure a Pemuanent Loan Default shall be deemed to have been advanced by the Subordinate Lender pursuant to, and shall be secured by the lien of,the Subordinate Mortgage. (b) Cross Default. The Subordinate Lender agrees that, notwithstanding any contrary provision contained in the Subordinate Loan Documents or City Regulatory Agreement, a Permanent Loan Default shall not constitute a default under the Subordinate Loan Documents or City Regulatory Agreement if no other default occurred under the Subordinate Loan Documents or City Regulatory Agreement until either (i) the Senior Lender has accelerated the maturity of the Permanent Loan, or (ii) the Senior Lender has taken affirmative action to exercise its rights under the Permanent Mortgage, including, without limitation, its rights to collect rent, to appoint (or seek the appointment of) a receiver or to foreclose on (or to exercise a power of sale contained in) the Pemianent Mortgage. At any time after a Pemianent Loan Default is determined to constitute a default under the Subordinate Loan Documents or City Regulatory Agreement, the Subordinate Lender shall be permitted to pursue its remedies for default under the Subordinate Loan Documents or City Regulatory Agreement (as applicable); subject to the restrictions.and limitations of this Agreement. If at any time the Borrower cures any Permanent Loan Default to the satisfaction of the Senior Lender, as evidenced by written notice from the Senior Lender to the Subordinate Lender, any default under the Subordinate Loan Documents or City Regulatory Agreement arising from such Permanent Loan Default shall be deemed cured and the Subordinate Loan shall be retroactively reinstated as if such Pemianent Loan Default had never occurred. SMRH:437071559.3 8 7. Conflict. The Borrower, the Senior Lender and the Subordinate Lender each agrees that, in the event of any conflict or inconsistency between the terms of the Permanent Loan Documents, the Subordinate Loan Documents, the City Regulatory Agreement, and the terms of this Agreement, the terms of this Agreement shall govern and control solely as to the following: (a)the relative priority of the security interests of the Senior Lender and the Subordinate Lender in the Property; (b) the timing of the exercise of remedies by the Senior Lender and the Subordinate Lender under the Permanent Mortgage, the Subordinate Mortgage and the City Regulatory Agreement, respectively; and (c) solely as between the Senior Lender and the Subordinate Lender, the notice requirements, cure rights, and the other rights and obligations which the Senior Lender and the Subordinate Lender have agreed to as expressly provided in this Agreement. Borrower acknowledges that the terms and provisions of this Agreement shall not, and shall not be deemed to: extend Borrower's time to cure any Permanent Loan Default, Subordinate Loan Default or City Regulatory Agreement Default, as the case may be; give the Borrower the right to notice of any Permanent Loan Default, Subordinate Loan Default or City Regulatory Agreement Default, as the case may be, other than that, if any, provided, respectively under the Permanent Loan Documents, the Subordinate Loan Documents or the City Regulatory Agreement; or create any other right or benefit for Borrower as against Senior Lender or Subordinate Lender. 8. Rights and Obligations of the Subordinate Lender Under the Subordinate Loan Documents and of the Senior Lender under the Permanent Loan Documents. Subject to each of the other terms of this Agreement, all of the following provisions shall supersede any provisions of the Subordinate Loan Documents covering the same subject matter: (a) Protection of Security Interest. The Subordinate Lender shall not, without the prior written consent of the Senior Lender in each instance, take any action which has the effect of increasing the indebtedness outstanding under, or secured by, the Subordinate Loan Documents, except that the Subordinate Lender shall have the right to advance funds to cure Permanent Loan Defaults pursuant to Section 6(a) above and advance funds pursuant to the Subordinate Mortgage for the purpose of paying real estate taxes and insurance premiums, making necessary repairs to the Property and curing other defaults by the • Borrower under the Subordinate Loan Documents. (b) Condemnation or Casualty. In the event of: a taking or threatened taking by condemnation or other exercise of eminent domain of all or a portion of the Property (collectively, a "Taking"); or the occurrence of a fire or other casualty resulting in damage to all or a portion of the Property (collectively, a "Casualty"), at any time or times when the Permanent Mortgage remain a lien on the Property the following provisions shall apply: (1) The Subordinate Lender hereby agrees that its rights (under the Subordinate Loan Documents or otherwise) to participate in any proceeding or action relating to a Taking and/or a Casualty, or to participate or join in any settlement of, or .to adjust, any claims resulting SMRH:437071559.3 9 from a Taking or a Casualty shall be and remain subordinate in all respects to the Senior Lender's rights under the Permanent Loan Documents with respect thereto, and the Subordinate Lender shall be bound by any settlement or adjustment of a claim resulting from a Taking or a Casualty made by the Senior Lender; provided, however, this subsection and/or anything contained in this Agreement shall not limit the rights of the Subordinate Lender to file any pleadings, documents, claims or notices with the appropriate court with jurisdiction over the proposed Taking and/or Casualty; and (2) all proceeds received or to be received on account of a Taking or a Casualty, or both, shall be applied (either to payment of the costs and expenses of repair and restoration or to payment of the Pelluanent Loan) in the manner determined by the Senior Lender in its sole discretion; provided, however, that if the Senior Lender elects to apply such proceeds to payment of the principal of; interest on and other amounts payable under the Permanent Loan, any proceeds remaining after the satisfaction in full of the principal of, interest on and other amounts payable under the Permanent Loan shall be paid to, and may be applied by, the Subordinate Lender in accordance with the applicable provisions of the Subordinate Loan Documents, provided however, the Senior Lender agrees to consult with the Subordinate Lender in determining the application of any such proceeds, provided further however that in the event of any disagreement between the Senior Lender and the Subordinate Lender over the application of any such proceeds, the decision of the Senior Lender, in its sole discretion, shall prevail. (c) No Modification of Subordinate Loan Documents. The Borrower and the Subordinate Lender each agrees that, until the principal of, interest on and all other amounts payable under the Pemianent Loan Documents have been paid in full, it will not, without the prior written consent of the Senior Lender in each instance, increase the amount of the Subordinate Loan, increase the required payments due under the Subordinate Loan, decrease the term of the Subordinate Loan, increase the interest rate on the Subordinate Loan, or otherwise amend the Subordinate Loan terms in a manner that creates an adverse effect upon the Senior Lender under the Permanent Loan Documents. Any unauthorized amendment of the Subordinate Loan Documents or assignment of the Subordinate Lender's interest in the Subordinate Loan without the Senior Lender's consent shall be void ab initio and of no effect whatsoever and Subordinate Lender agrees that it shall not transfer or assign the Subordinate Loan or the Subordinate Loan Documents without the prior written consent of the Senior Lender. 9. Conversion,Modification or Refinancing of Permanent Loan. The Subordinate Lender consents to any agreement or arrangement in which the Senior Lender waives, postpones, extends, reduces, amends, restates or otherwise modifies any provisions of the Senior Loan Documents, including any provision requiring the payment of SMRH:437071559.3 10 money. Subordinate Lender further agrees that its agreement to subordinate hereunder shall extend to the Permanent Loan Documents, as well as to any new mortgage debt which is for the purpose of refinancing all or any part of the Permament Loan (including reasonable and necessary costs associated with the closing and/or the refmancing) and, in the event of any such new mortgage debt, Subordinate Lender shall execute and deliver to Senior Lender and/or to the holder of such new mortgage debt a new subordinationagreement on the same teuus and conditions as this Subordination Agreement. Notwithstanding anything to the contrary in this Section 9, or in Section 4(a) above, prior to any Peiuianent Loan Default, Subordinate Loan Default or City Regulatory Agreement Default and during the cure period afforded to Subordinate Lender pursuant to Section 6(a), the Senior Lender shall not, without the prior written consent of the Subordinate Lender in each instance, take any action which has the effect of increasing the indebtedness outstanding under, or secured by, the Permanent Loan Documents, increasing the required payments due under the Permanent Loan, decreasing the term of the Permanent Loan, increasing the interest rate on the Permanent Loan, except that the Senior Lender shall have the right to advance funds to cure Subordinate Loan Defaults pursuant to Section 5(a) above and advance funds pursuant to the Permanent Mortgage for the purpose of paying real estate taxes and insurance premiums, making necessary repairs to the Property and curing other defaults by the Borrower under the Permanent Loan Documents. 10. City Regulatory Agreement. In the event Senior Lender acquires title to the Property pursuant to a foreclosure or a deed in lieu of foreclosure, or the exercise of a power of sale contained in the Permanent Mortgage (any of the foregoing, a "Foreclosure Event"), the City Regulatory Agreement shall be amended and modified as follows" (a) To replace Recital F, in its entirety, with the following: "F. In consideration of City's provision of financial assistance to Owner for the Project, the units to be developed on the Property will be restricted as affordable rental units for occupancy by low income households at an affordable rent." (b) To replace the definition of "Affordable Rent," in its entirety, with the following: "Affordable Rent" shall mean annual rent that does not exceed the maximum percentage of income that can be devoted to rent (including a reasonable utility allowance) by Eligible Tenants, which is 30% times 80% of the Median Income adjusted for family size appropriate to the Unit." As used herein, "adjusted for family size appropriate to the Unit" shall mean a household of 2 persons in the case of a one-bedroom Unit, a household of 3 persons in the case of a two-bedroom Unit, and a household of 4 persons in the case of a three-bedroom Unit. (c) To replace the definition of `Eligible Tenant," in its entirety, with the following: SMRH:437071559.3 11 "Eligible Tenant" shall mean a tenant whose household income exceeds 80% of the Median Income, but does not exceed 100% of the Median Income." (d) To delete the terms "Unit Mix" and"Very Low Income Tenant." Upon the occurrence of a Foreclosure Event, Subordinate Lender agrees to execute an amendment to the City Regulatory Agreement that provides for the modifications described in this Section 10 if reasonably required by Senior Lender or by a title company to effect such modifications. Notwithstanding anything herein to the contrary, Subordinate Lender acknowledges and agrees that certain Notice of Affordability Restrictions on Transfer of Property recorded in the Official Records on April 3, 2013, as Instrument No. 2013-018880 was recorded to provide interested persons with notice of the City Regulatory Agreement, and does not independently impose any restrictions on the Property. 11. Default by the Subordinate Lender or Senior Lender. If the Subordinate Lender or Senior Lender defaults in performing or observing any of the terms, covenants or conditions to be performed or observed by it under this Agreement, the other,non-defaulting lender shall have the right to all available legal and equitable relief. The internal laws of the State of California without regard to conflict of law principles shall govern the interpretation and enforcement of this Agreement. Any legal actions shall be instituted and maintained in the Superior Court of the County of San Luis Obispo, State of California, or in any other appropriate court in that County. If either Senior Lender or Subordinate Lender shall bring an action against the other by reason of the breach of any covenant, provision, or condition of this Agreement, or otherwise arising out of this Agreement, the unsuccessful party shall pay to the prevailing party reasonable attorneys' fees, which fees shall be payable whether or not any action is prosecuted to judgment. The term "prevailing party" shall include, without limitation, a party who brings an action against the other by reason of the other's breach or default and obtains substantially the relief sought, whether by compromise, settlement, or judgment. 12. Notices. Each notice, request, demand, consent, approval or other communication (hereinafter in this Section referred to collectively as "notices" and referred to singly as a "notice") which the Senior Lender or the Subordinate Lender is required or permitted to give to the other party pursuant to this Agreement shall be in writing and shall be deemed to have been duly and sufficiently given if: (a)personally delivered with proof of delivery thereof (any notice so delivered shall be deemed to have been received at the time so delivered); or (b) sent by Federal Express (or other similar national overnight courier) designating early morning delivery (any notice so delivered shall be deemed to have been received on the next Business Day following receipt by the courier); or (c) sent by United States registered or certified mail, return receipt requested, postage prepaid, at a post office regularly maintained by the United States Postal SMRH:437071559.3 12 • Service (any notice so sent shall be deemed to have been received two days after mailing in the United States), addressed to the respective parties as follows: SENIOR LENDER: Bank of America,N.A. 2001 Clayton Road, Bldg. 2, 2nd Floor Mail Code: CA4-702-09-29 Concord, CA 94520 Attention: Loan Administration SUBORDINATE LENDER: City of Arroyo Grande 300 East Branch Street Arroyo Grande, CA 93420 Attention: City Manager Either party may, by notice given pursuant to this Section, change the person or persons and/or address or addresses, or designate an additional person or persons or an additional address or addresses for its notices, but notice of a change of address shall only be effective upon receipt. 13. General. (a) Assignment/Successors. This Agreement shall be binding upon the Borrower, the Senior Lender and the Subordinate Lender and shall inure to the benefit of the respective legal successors and assigns of the Senior Lender and the Subordinate Lender. (b) No Partnership or Joint Venture. The Senior Lender's permission to retain the Subordinate Loan Documents does not constitute the Senior Lender as a joint venturer or partner of the Subordinate Lender. Neither party hereto shall hold itself out as a partner, agent or Affiliate of the other party hereto. (c) Senior Lender's and Subordinate Lender's Consent. Wherever the Senior Lender's consent or approval is required by any provision of this Agreement, such consent or approval may be granted or denied by the Senior Lender in its sole and absolute discretion, unless otherwise expressly provided in this Agreement. Wherever the Subordinate Lender's consent or approval is required by any provision of this Agreement, such consent or approval may be granted or denied by the Subordinate Lender in its sole and absolute discretion, unless otherwise expressly provided in this Agreement. (d) Further Assurances. The Subordinate Lender, the Senior Lender and the Borrower each agree, at the Borrower's expense, to execute and deliver all additional instruments and/or documents reasonably required by any other party to this Agreement in order to evidence that the Subordinate Mortgage is subordinate to the lien, covenants and conditions of the Permanent Mortgage, or to further evidence the intent of this Agreement. (e) Amendment. This Agreement shall not be amended except by written instrument signed by all parties hereto. (f) Governing Law. This Agreement shall be governed by the laws of the State in which the Property is located. SMRH:4370715593 13 (g) Severable Provisions. If any provision of this Agreement shall be invalid or unenforceable to any extent, then the other provisions of this Agreement, shall not be affected thereby and shall be enforced to the greatest extent permitted by law. (h) Term. The term of this Agreement shall commence on the date hereof and shall continue until the earliest to occur of the following events: (i) the payment of all of the principal of, interest on and other amounts payable under the Permanent Loan Documents; (ii) the payment of all of the principal of, interest on and other amounts payable under the Subordinate Loan Documents, other than by reason of payments which the Subordinate Lender is obligated to remit to the Senior Lender pursuant to Section 4 hereof, and the expiration of the City Regulatory Agreement; (iii)the acquisition by the Senior Lender of title to the Property pursuant to a foreclosure or a deed in lieu of foreclosure of, or the exercise of a power of sale contained in, the Permanent Mortgage; or (iv) the acquisition by the Subordinate Lender of title to the Property pursuant to a foreclosure or a deed in lieu of foreclosure of, or the exercise of a power of sale contained in, the Subordinate Mortgage, but only if such acquisition of title does not violate any of the terms of this Agreement. (i) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be considered an original for all purposes; provided, however, that all such counterparts shall together constitute one and the same instrument. [Remainder of Page Intentionally Left Blank] SMRH:437071559.3 14 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. SENIOR LENDER: BANK OF AMERICA,N.A., a national banking association By: Andrea Ursillo Sr. Vice President SUBORDINATE LENDER: CITY OF ARROYO GRANDE, a California municipal corporation By: N Jlr I-( ILL Titl : YY�Ay O p� APPROVED AS TO FORM: ATTEST: RUTAN& TUCKER, LLP City Clerk Special Counsel to the City BORROWER: COURTLAND STREET APARTMENTS, L.P., a California limited partnership By: People's Self-Help Housing Corporation, a California nonprofit public benefit corporation, its General Partner By: Name: Title: SMRH:437071559.3 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 S 1-14 i5 Obi 5/00 ) On 06.-0/—J0/5— , before me, /7o y 41-1. , a Notary Public, personally appeared moi`'-,i Hid/ , who proved to me on the basis of satisfactory evidence to be the person(} whose name(4) is/a€ subscribed to the within instrument and acknowledged to me that he/she/-thety executed the same in his/h herr authorized capacity(ies-), and that by his/her theip 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. KITTY NORTON Commission$2099808 Notary Public-California I z n% San Luis Obispo County MComm. InnMar 9,2019 Signature L/' 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, , a 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. Signature SMRH:437071559.3 EXHIBIT A LEGAL DESCRIPTION All that certain real property situated in the City of Arroyo Grande, County of San Luis Obispo, State of California, described as follows: PARCEL 2 AS DESCRIBED IN THAT CERTAIN CERTIFICATE OF COMPLIANCE RECORDED JULY 15, 2009 AS DOCUMENT NO 2009-038586 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER AND MORE FULLY DESCRIBED AS FOLLOWS: A PORTION OF LOT 1 OF THE J.F BECKETT'S GRAND AVENUE TRACT,IN THE CITY OF ARROYO GRANDE, COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA,ACCORDING TO MAP FILED SEP 1'EMBER 26, 1891 IN BOOK B,PAGE 75 OF MAPS,IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY,AND THAT PORTION OF BLOCK 114 OF THE TOWN OF GROVER,IN THE CITY OF ARROYO GRANDE, COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA,ACCORDING TO MAP FILED NOVEMBER 23, 1892 IN BOOK A,PAGE 6 OF MAPS,IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY,AND THAT PORTION OF REMAINDER OF TRACT 2471,IN THE CITY OF ARROYO GRANDE, COUNTY OF SAN LUIS OBISPO,STATE OF CALIFORNIA,ACCORDING TO MAP FILED AUGUST 16,2004 IN BOOK 24,PAGES 9, 10 AND 11 OF MAPS,IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY,AND BEING THE SOUTH 172.25 FEET OF THE FOLLOWING DESCRIPTION; BEGINNING AT THE NORTHEAST CORNER OF LOT 1 OF TRACT 2158,IN THE CITY OF GROVER BEACH, COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA,ACCORDING TO MAP FILED MAY 2, 1994 IN BOOK 17,PAGE 23 OF MAPS,IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY; THENCE ALONG THE EASTERLY LINE THEREOF AND ALONG THE EAST LINE OF THE LAND DESCRIBED IN DEED TO JOHN BRADLEY FORDE AND ANITA MADELINE FORDE IN DOCUMENT NO. 2003-122906 FILED OCTOBER 22,2003 IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, SOUTH 03° 14' 51"WEST,645.07 FEET TO THE NORTHWEST CORNER OF LOT 7 OF SAID TRACT 2471; THENCE ALONG THE NORTHERLY LINE OF SAID TRACT 2471 AND THE NORTHERLY LINE OF TRACT 2260 PHASE I,IN THE CITY OF ARROYO GRANDE,COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA,ACCORDING TO MAP FILED NOVEMBER 3,2000,IN BOOK 19,PAGE 43 OF MAPS,IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY THEREOF, SOUTH 86°45' 35"EAST, 411.86 FEET TO A POINT ON THE WESTERLY LINE OF AN EXISTING 50-FOOT EASEMENT FOR ROAD PURPOSES,AS SHOWN ON PARCEL MAP AG 00-301,IN THE CITY OF ARROYO GRANDE, COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA,ACCORDING TO MAP FILED JUNE 25,2002 IN BOOK 56, PAGE 54 OF PARCEL MAPS,IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY,WHICH POINT IS SOUTH 86°45' 35"EAST, 7.00 FEET FROM THE NORTHEAST CORNER OF LOT 84 OF SAID TRACT 2260 PHASE I; THENCE ALONG THE WESTERLY LINE OF SAID 50-FOOT EASEMENT FOR ROAD PURPOSES,NORTH 03° 14' 46"EAST,645.00 FEET TO A POINT ALONG THE SOUTHERLY RIGHT-OF-WAY OF EAST GRAND AVENUE; THENCE ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE THEREOF,NORTH 86°45' 00"WEST,411.84 FEET TO THE POINT OF BEGINNING. Assessor Parcel No(s).: 077-131-053 &077-13.1-055 SMRH:437071559.3