Loading...
HomeMy WebLinkAboutDEPOT AT SANTIAGO, LP (3) - 2016A- 2016 -033 FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 (M -37) Santa Ana, California 92702 Attn: Housing Manager . a � CITY LOAN MODIFICATION AGREEMENT City of Santa Ana and Depot At Santiago, L.P. (Depot at Santiago, 923 N. Santiago Street, Santa Ana, California) This LOAN MODIFICATION AGREEMENT (this "Agreement ") is dated as of March 2, 2016 and is entered into by and between the City of Santa Ana, a charter city and municipal corporation ( "City "), and Depot At Santiago, L.P., a California limited partnership (the "Borrower "). The City and the Borrower shall collectively be referred to herein as 'Parties." RECITALS A. Pursuant to that Loan Agreement between the City and the Borrower, dated July 11, 2013, and recorded in the Official Records of the County of Orange (the "Official Records ") as hrstrument No. 2013000476763 on August 9, 2013, as amended by the Amendment to Loan Agreement between the City and the Borrower, dated June 18, 2014, and recorded in the Official Records as Instrument No, 2014000255562 on June 27, 2014 (collectively, "Loan Agreement "), the City made a loan to the Borrower in the amount of $3,000,000 (the "City Loan ") to assist with the acquisition and development of certain real property, more particularly described in the attached Exhibit A, for the development of an affordable housing development. B. The City Loan is atso evidence by that: certain City Promissory Note, dated July 11, 2013, executed by the Borrower and payable to the City in the original principal amount of $3,000,000 ( "City Note "), which is secured by that certain City Deed of Trust and Assignment of Rents executed by Borrower in favor of City, dated July 11, 2013, and recorded in the Official Records as Instrument No. 2013000476764 on August 9, 2013 ( "City Deed of Trust "). G In connection with the City Loan, the City and Borrower entered into that certain Affordability Restrictions on Transfer of Property, dated July 11, 2013, and recorded in the Official Records as Instrument No. 2013000476766 on August 9, 2013, as amended by the 1076 \49 \1843311.2 Amendment to Affordability Restrictions on Transfer of Property between City and Borrower, dated June 18, 2014, and recorded in the Official Records as Instrument No. 2014000255563 on June 27, 2014 (collectively, "City Affordability Restrictions "). The Loan Agreement, City Note, City Deed of Trust and City Affordability Restrictions are together referred to as the "City Loan Documents." D. Capitalized terms not defined in this Agreement shall have the meanings set forth in the Loan Agreement. E. The Borrower has arranged for equity and lender financing for the development of the affordable housing contemplated by the Loan Agreement and in connection therewith, the Parties desire to modify certain terms of the Loan Agreement, City Note and City Deed. NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants and agreements hereinafter set forth, and other consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows: 1. Modification of the Loan A reement. The Loan Agreement is hereby modified as follows: a. Section 6.1(c). The last sentence of Section 6.1(c) of the Loan Agreement is hereby replaced in its entirety as follows: "The City's Affordability Restrictions on Transfer of Property shall remain in first position on title and shall not be subordinated except that the City's Affordability Restrictions on Transfer of Property, the City Deed of Trust and other City Loan Documents may be subordinated if required by other governmental agencies providing financing to the Project." 2. Modification of the City Affordability Restrictions. The City Affordability Restrictions are hereby modified as follows: a. Section 11A. The last sentence of Section 3.1A of the City Affordability Restrictions is hereby replaced in its entirety as follows: "The City's Affordability Restrictions on Transfer of Property shall remain in first position on title and shall not be subordinated except as may be required by other governmental agencies providing financing to the Project." 3. Modification of the City Deed of Trust. The City Deed of Trust is hereby modified as follows: a. Section 4. The Section 4 of the City Deed of Trust is hereby replaced in its entirety as follows: 1076 \49 \1843311.2 "4. Subordination. The City's Affordability Restrictions on Transfer of Property shall remain in first position on title and shall not be subordinated except as may be required by other governmental agencies providing financing to the Project." 4. Modification of the CitNote. The City accepts the executed original of the Amended and Restated Promissory Note, attached as Exhibit B to this Agreement, as the replacement promissory note for the City Note and hereby cancels the City Note. 5. Investor Limited Partner Rights. The City agrees that any cure tendered under the City Loan Documents by Borrower's limited partner shall be accepted or rejected on the same basis as if tendered by Borrower, and it will provide a copy of any notice delivered to Borrower under the City Loan Documents to: NEF Assignment Corporation, and its successors and /or assigns 10 South Riverside Plaza Suite 1700 Chicago, IL, 60606 Attn: General Counsel 6. Full Force and Effect. Except as set forth in this Agreement, the City Loan Documents remain unmodified and are in full force and effect 7. Headings. The headings used in this Agreement are for convenience only and shall be disregarded in interpreting the substantive provisions of this Agreement. Exhibits. All attached exhibits are incorporated herein by reference. 9. Successors and Assigns. This Agreement shall be binding on and inure to the benefit of the legal representatives, heirs, successors and assigns of the parties. 10. California Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 11. Invalidity. Any provision of the Agreement which is determined by a court to be invalid or unenforceable shall be deemed severed herefrom, and the remaining provisions shall remain in full force and effect as if the invalid or unenforceable provision had not been a part hereof. 12. Counterparts. This Agreement may be signed by the different parties hereto in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same agreement. SIGNATURES ON FOLLOWING PAGE 1076\49\1 843311.2 IN WITNESS WHEREOF, the City and the Borrower have duly executed this Agreement as of the day and year first above written. CITY: CITY OF SANTA ANA, a charter city and municipal corporation ATTEST: CITY OF SANTA ANA Maria D. Huizar �David Cavazos Clerk of the Council City Manager i APPROVED AS TO FORM BORROWER: DEPOT AT SANTIAGO, LP, a California limited partnership By: OHDC Depot, LLC, a California limited liability company, its managing general partner By: Orange Housing Development Corporation, a California nonprofit corporation, its sole member By: Eunice Bobert, Chief Executive Officer By: C &C Depot, LLC, a California limited liability company, its administrative general partner By: C & C Development Co., LLC, a California limited liability company, its sole member By: T d R. Cottle, its member By: , c C i ', arry A. Cottle, Trustee of The Cottle Family Trust Dated 3/8/1987, its member 1076 \49 \1843311.2 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Orange ) On March 8. 2016 before me, Claudia M. Fernandez -Shaw, Notary Public (insert name and title of the officer) personally appeared David Cavazos who proved to me on the basis of satisfactory evidence to be the personA whose name(sjcis/are subscribed to the within instrument and acknowledged to me that eshe/they executed the same in obi97her /their authorized capacity(ie6), and that by hOltham /their signature(Kon the instrument the person(sy, or the entity upon behalf of which the person(s6 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. my hand and official seal. 9i (Seal) CLAUDIA NIaFERNANDE2 -SHAW Commission # 2053995 Notary Public - California z z Orange County M Comm. Expires Jan 25, 2018 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 drux..1c' ) On i)^,,l r(,t, :,2, �F�) f�i , before me, -J("q. �-�T�14C.. P�� r� C- F1ir�,....:,1 7 , Notary Public, personally appeared ZF, f5 c c c „ who proved to me on the basis of satisfactory evidence to be the person(w)' whose name(sy s /are subscribed to the within instrument and aelmowledged to me thathlshelthey executed the same in( /her/their authorized capacity�e , and that b37her /their signature(g) on the instrument the person(A), 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. JEANNETTE MARIE MOROWITZ Commission # 2062423 Notary Public • Calilornia Orange County Notary Public M Comm. Enpires Mar 27, 2018 1076 \49 \16433112 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 DMnga. ) On Mg-(c l t 2 120110 , before me, emQ C �, 01'luyr4 Qej , Notary Public, personally appeared Takk1 P., (ntN-p—, +3arwg (mitre. f , who proved to me on the basis of satisfactory evidence to be the person o whose namoa D subscribed to the within instrument and acknowledged to me that t e executed the same in 4w their authorized capacity res and that by-has r eir ignature Dn the instrument the persons or the entity upon behalf of which the persor](9 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. rA CHIMM CN CWM— 18E11 Commies" /2129949 0142�2: a Mary PVW • Co9lwell Name: sck-o of"" Coao1y AA Comm. E a Ool 1D 2D19 Notary Public 1076A49A1843311.2 EXHIBIT A PROPERTY LEGAL DESCRIPTION Real property in the City of Santa Ana, County of Orange, State of California, described as follows: PARCEL 1: ALL OF BLOCK 52 OF THE TOWN OF SANTA ANA EAST, AS SHOWN ON THE OFFICIAL MAP OF SAID TOWN, RECORDED IN BOOK 10, PAGE 43, OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE RECORDER OF THE COUNTY OF LOS ANGELES. EXCEPTING AND RESERVING UNTO SOUTHERN PACIFIC RAILROAD COMPANY, A CORPORATION, THEIR SUCCESSORS AND ASSIGNS, ALL PETROLEUM, OIL, NATURAL GAS AND PRODUCTS DERIVED THEREFROM WITHIN OR UNDERLYING SAID LAND, OR THAT MAY BE PRODUCED THEREFROM AND ALL RIGHTS THERETO; PROVIDED, HOWEVER, THAT SAID SOUTHERN PACIFIC RAILROAD COMPANY, A CORPORATION, THEIR SUCCESSORS AND ASSIGNS, SHALL NOT USE THE SURFACE OF SAID LAND IN THE EXERCISE OF ANY OF SAID RIGHTS, BUT SHALL HAVE THE RIGHT TO ENTER INTO AND USE THE SUB - SURFACE OF SAID LAND BY LATERAL OR SLANT DRILLING AND BORING FOR SUCH PURPOSES; PROVIDED, FURTHER, THAT IN SO DOING SAID SOUTHERN PACIFIC RAILROAD COMPANY, A CORPORATION, THEIR SUCCESSORS OR ASSIGNS, SHALL NOT DISTURB THE SURFACE OF SAID LAND, OR ANY IMPROVEMENTS THEREON, OR REMOVE OR IMPAIR THE LATERAL OR SUBJECT SUPPORT OF SAID LAND, OR ANY IMPROVEMENT THEREON, BY DEED RECORDED JULY 14, 1945, IN BOOK 1326, PAGE 24, OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA. ALSO EXCEPTING THEREFROM THOSE PORTIONS OF LOTS 15 AND 16 OF BLOCK 52 GRANTED TO THE CITY OF SANTA ANNA, A MUNICIPAL CORPORATION BY FINAL ORDER OF CONDEMNATION, CASE NO. 160 973, RECORDED NOVEMBER 26, 1969, AS INSTRUMENT NO. 15762, IN BOOK 9148, PAGE 783 OF OFFICIAL RECORDS. PARCEL 2: THAT PORTION OF LOT 8 IN BLOCK D OF HAWKIN'S ADDITION TO SANTA ANA, AS SHOWN ON A MAP RECORDED IN BOOK 13, PAGE 36 OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 8 OF THE HAWKIN'S ADDITION TO SANTA ANA; THENCE SOUTHEASTERLY 77.22 FEET TO A POINT DISTANT SOUTHERLY, MEASURED AT RIGHT ANGLES 69.80 FEET FROM THE NORTH LINE OF SAID LOT 8, SAID POINT BEING ALSO DISTANT WESTERLY, MEASURED AT RIGHT ANGLES 93.87 FEET FROM THE EAST LINE OF SAID LOT 8; THENCE NORTHEASTERLY TO A POINT DISTANT SOUTHERLY, MEASURED AT RIGHT ANGLES 31.53 FEET FROM THE SAID NORTH LINE, SAID POINT BEING ALSO DISTANT WESTERLY, MEASURED AT RIGHT ANGLES 14.34 FEET FROM THE SAID EAST LINE, SAID POINT BEING ALSO THE POINT OF TANGENCY WITH A CURVE CONCAVE NORTHWESTERLY, HAVING A RADIUS OF 25.00 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 640 50'49" AN ARC - DISTANCE OF 28.36 FEET TO THE POINT OF TANGENCY WITH THE EAST LINE OF SAID LOT 8; THENCE NORTHERLY ALONG SAID EAST LINE 8.87 FEET; THENCE WESTERLY 126.9 FEET ALONG THE NORTH LINE OF SAID LOT 8 TO THE POINT OF BEGINNING. APN: 398 - 202 -01 and 398 - 202 -10 A -1 1076A49A18433112 EXHIBIT B FORM OF AMENDED AND RESTATED CITY PROMISSORY NOTE AMENDED AND RESTATED CITY PROMISSORY NOTE $3,000,000.00 February 1, 2016 Santa Ana, California FOR VALUE RECEIVED, Depot At Santiago L.P., a California limited partnership (the "Borrower "), promises to pay to THE CITY OF SANTA ANA, a municipal corporation and charter city (the "City "), or order, at the City office at 20 Civic Center Plaza, Santa Ana, California 92701, or such other place as the City may designate in writing, the sum of Three Million Dollars ($3,000,000.00) (the "Note Amount "), in currency of the United States of America, which at the time of payment is lawful for the payment of public and private debts. This Amended and Restated City Promissory Note amends and restates, and cancels, in its entirety, the City Promissory Note in the original principal amount of Three Million Dollars ($3,000,000.00), dated as of July 11, 2013, executed by the Borrower in favor of the City. 1. Agreement. This Amended and Restated City Promissory Note (the "Note ") is given in accordance with that certain Loan Agreement executed by the City and Borrower, dated concurrently herewith (the "Agreement ") with regard to the development of the property located at 923 N. Santiago Street, Santa Ana, California ( "the Property ") for use as an affordable rental housing project ( "the Project "). The rights and obligations of the Borrower and the City under this Note shall be governed by the Agreement and by the additional terms set forth in this Note. Capitalized terms not defined herein shall have the meaning ascribed to such term in the Agreement. In the event of any inconsistencies between the terms of this Note and the terms of the Agreement or any other document related to the Note Amount, the terms of this Note shall prevail. 2. Interest. The Note Amount shall bear simple interest at the rate of Three Percent (3 %) per annum, from the date of issuance of the Certificate of Occupancy /Completion. 3. Repayment of Note Amount. The Note Amount shall be paid by the Borrower's annual payment to the City of an amount equal to thirty -one and forty -seven one hundredths percent (31.47 %) of the Residual Receipts (as defined below) from operation of the Project as determined by a residual receipts calculation from the operation of the Project the preceding calendar year. Annual Residual Receipts payment shall be paid by the Borrower and shall be delivered on or before one hundred fifty (150) days after the end of the Borrower's fiscal year, of each year during the term of this Note first following the date the Project is placed in service, until the Note Amount and all unpaid interest thereon has been repaid in full. Any remaining portion of the Note Amount shall be due and payable on the earlier to occur of (a) the fifty -fifth IC 1076\49\1 843311.2 (55th) anniversary of the date of the issuance of the Certificate of Completion for the Project; or (b) July 11, 2071. Notwithstanding the foregoing, the full Note Amount may be accelerated as set forth in Section 14 hereof. 4. Definitions. As used herein, 'Annual Project Revenue" shall mean all gross income and all revenues of any kind from the Project in a calendar year, including without limitation, rent, Section 8 housing assistance payments, if any, late charges, vending machine income, and any other revenues of whatever kind or nature from the Project, except that security deposits (until applied), interest on security deposits and required reserves, sales proceeds, and the proceeds of loans, refinancings, condemnation, insurance claims, and partner capital contributions, shall not be considered Annual Project Revenue. As used herein, "Applicable Federal Rate" means the interest rate set by the United States Treasury from time to time for the purpose of determining applicable Low Income Housing Tax Credit interest rates published by the Internal Revenue Service in monthly reserve rulings. As used herein, "Debt Service" means regularly scheduled payments of principal and interest made in a calendar year pursuant to the financing obtained for the development and ownership of the Project which has been approved by the City pursuant to the Agreement, and which is senior in lien priority to the City Loan, but excluding payments made pursuant to the Promissory Note. As used herein, "Capital Replacement Reserve" shall mean a reasonably required reserve not to exceed $250 per unit per year (or such greater amount as may be required by lenders or investors for the Project, to be used for the purpose of replacing capital items. On or before one hundred fifty (150) days after the end of the Borrower's fiscal year, of each year commencing in the year after the issuance of the Certificate of Completion for the Project, the Borrower shall annually provide the City an audited financial statement for the Project and a Residual Receipts Report, in the form attached hereto as Exhibit A, which shall describe in detail the Annual Project Revenue, Debt Service, Operating Expenses, Capital Replacement Reserve (including deposits therein and expenditures therefrom), and Residual Receipts for that year for the Project. The Borrower shall also submit to the City, on or before one hundred fifty (150) days after the end of the Borrower's fiscal year, of each year commencing in the year of the issuance of the Certificate of Completion for the Project, annual audited financial statements with respect to the Project that have been reviewed by an independent certified public accountant, together with an expressed written opinion of the certified public accountant that such financial statements present the financial position, results of operations, and cash flows fairly and in accordance with generally accepted accounting principles. "Operating Budget" and 'Annual Budget" shall mean the annual operating budget for the Project that sets forth the projected Operating Expenses for the upcoming year that is subject to and shall be submitted for review and approval by the Deputy City Manager or his /her designee, in his /her reasonable discretion, each year during the Affordability Period pursuant to the Agreement. B -2 1076 \49 \184331 1.2 "Operating Expenses" shall mean actual, reasonable and customary (for comparable high quality rental housing developments in Orange County) costs, fees and expenses directly incurred, paid, and attributable to the operation, maintenance and management of the Project in a calendar year, and which is reasonably consistent with the annual Operating Budget for the Project approved by City pursuant to the Agreement, including: painting, cleaning, repairs, alterations, landscaping, utilities, refuse removal, certificates, permits and licenses, sewer charges, real and personal property taxes, assessments, insurance, security, advertising and promotion, janitorial services, cleaning and building supplies, purchase, repair, servicing and installation of appliances, equipment, fixtures and furnishings, fees and expenses of property management, fees and expenses of accountants, attorneys and other professionals, the cost of social services and other housing supportive services provided at the Project consistent with Borrower's approved Tax Credit Applications to TCAC for the Project, repayment of any completion or operating loans made to Borrower, and other actual, reasonable and customary operating costs and capital costs which are directly incurred and paid by Borrower, but which are not paid from or eligible to be paid from the Capital Replacement Reserve or any other reserve accounts for the Project. To the extent the Operating Expenses for the Project are not reasonably consistent with the annual Operating Budget for a given year, the City Manager shall reasonably review and approve to confirm such Operating Expenses are reasonable and actually incurred; provided, no approval shall be required for emergency expenditures reasonably necessary or appropriate to preserve life, limb, or property. Operating Expenses shall exclude all of the 'following: (i) salaries of employees of Borrower or Borrower's general overhead expenses, or expenses, costs and fees paid to an Affiliate of Borrower, to the extent any of the foregoing exceed the expenses, costs or fees that would be payable in a bona fide arms' length transaction between unrelated parties in the Orange County area for the same work or services; (ii) any amounts paid directly by a tenant of the Rental Portion of the Project to a third party in connection with expenses which, if incurred by Borrower, would be Operating Expenses; (iii) optional or elective payments with respect to financing approval pursuant to the Agreement (the "Senior Loan ") (unless made with the consent of the City Manager in her reasonable discretion); (iv) expenses, expenditures, and charges of any nature whatsoever arising or incurred by Borrower prior to completion of the Project with respect to the development, maintenance and upkeep of the applicable the Project, or any portion thereof, including, without limitation, all costs and capitalized expenses incurred by Borrower in connection with the acquisition of the Site from the City (e.g. not leasing to low income tenants), all predevelopment and preconstruction activities conducted by Borrower in connection with the Project, including, without limitation, the preparation of all plans and the performance of any tests, studies, investigations or other work, and the construction of the Project and any on -site or off -site work in connection therewith; (vi) depreciation, amortization, and accrued principal and interest expense on deferred payment debt; and (vii) any partnership related fees to the extent they are not paid as capitalized expenses. "Partnership Agreement" means the most current partnership agreement between the Borrower and the Investor Limited Partner. "Residual Receipts" shall mean Annual Project Revenue for the Project less the sum of: B -3 1076 \49 \1843311.2 (i) Operating Expenses; (ii) Debt Service; (iii) Reserve Deposits to the Capital Replacement Reserve; (iv) Borrower paid Expenses, including without limitation, an asset management or similar fee paid to the Borrower's investor limited partner or its affiliate in amounts not to exceed $5,000 per year escalating at 3% annually (provided, however, such fee shall only be payable during the fifteen (I5) -year compliance period as described in Section 42(i)(1) of the Code) and a partnership management fee or similar fee paid to the managing general partner of Borrower in amounts not to exceed $25,000 per year escalating at 3% annually; (v) Unpaid Tax Credit adjustment amounts, if any (after review and reasonable verification by City Manager of documents provided by Borrower showing propriety of such amounts and payments); (vi) Repayment of loans, if any, made by the limited partner(s) of Borrower, including interest at the Applicable Federal Rate (the propriety of any such loans must be reasonably verified by City Manager); (vii) Property management fee for the Project which remains unpaid after payment of Operating Expenses, if any; (viii) Deferred Developer Fee for the Project which remains unpaid, if any, including interest at the Applicable Federal Rate, if applicable; (ix) Repayment of outstanding development and operating loans, if any, made by the administrative and /or managing general partners and /or the Guarantors to the Project, including interest at the Applicable Federal Rate (the propriety of any such loans pursuant to the terms of the Partnership Agreement must be reasonably verified by City Manager); and (x) Capital contributions to the Project, if any, made by the general partners or managing member, as applicable, of Borrower that were used to pay the Borrower Fee. 5. Security. This Note is secured by a Deed of Trust (the "Deed of Trust ") dated as of the same date as this Note. 6. Nonrecourse. This Note shall constitute a nonrecourse obligation of Borrower. Neither Borrower, nor any of its partners (general or limited) shall have any personal liability for payment or performance of this Note. In the event of a default hereunder, the City's sole recourse shall be to proceed against the collateral described in the Deed of Trust. 7. Waivers. a. Borrower expressly agrees that this Note or any payment hereunder may be extended from time to time at the City's sole discretion and that the City may accept security in B -4 1076\49\1 843311.2 consideration for any such extension or release any security for this Note at its sole discretion all without in any way affecting the liability of Borrower. b. No extension of time for payment of this Note made by agreement by the City with any person now or hereafter liable for the payment of this Note shall operate to release, discharge, modify, change or affect the original liability of Borrower under this Note, either in whole or in part. C. The obligations of Borrower under this Note shall be absolute and Borrower waives any and all rights to offset, deduct or withhold any payments or charges due under this Note for any reasons whatsoever. d. Borrower waives presentment, demand, notice of protest and nonpayment, notice of default or delinquency, notice of acceleration, notice of costs, expenses or leases or interest thereon, notice of dishonor, diligence in collection or in proceeding against any of the rights of interests in or to properties securing of this Note, and the benefit of any exemption under any homestead exemption laws, if applicable. e. No previous waiver and no failure or delay by City in acting with respect to the terms of this Note or the Deed of Trust shall constitute a waiver of any breach, default, or failure or condition under this Note, the Deed of Trust or the obligations secured thereby. A waiver of any term of this Note, the Deed of Trust or of any of the obligations secured thereby must be made in writing and shall be limited to the express written terms of such waiver. S. Attorneys' Fees and Costs. Borrower agrees that if any amounts due under this Note are not paid when due, to pay in addition, all costs and expenses of collection and reasonable attorneys' fees paid or incurred in connection with the collection or enforcement of this Note, whether or not suit is filed. 9. Joint and Several Obligation. This Note is the joint and several obligation of all makers, sureties, guarantors and endorsers, and shall be binding upon them and their heirs, successors and assigns. 10. Amendments and Modifications. This Note may not be changed orally, but only by an amendment in writing signed by Borrower and by the City. 11. City May Assign. City may, at its option, assign its right to receive payment under this Note without necessity of obtaining the consent of the Borrower. 12. Borrower Assignment Prohibited. h1 no event shall Borrower assign or transfer any portion of this Note without the prior express written consent of the City, which consent shall not unreasonably be withheld, except pursuant to a transfer which is permitted or approved pursuant to the terms of the Agreement. 13. Terms. Any terms not separately defined herein shall have the same meanings as set forth in the Agreement. C 1076\49\1 843311.2 14. Acceleration and Other Remedies. Upon: (a) the occurrence of an event of Default as defined in the Agreement and delivery of notice and expiration of the cure period described therein, or (b) Borrower selling, contracting to sell, giving an option to purchase, conveying, leasing, further encumbering, mortgaging, assigning or alienating the Borrower's interest in the Project (other than as permitted or approved pursuant to the Agreement), whether directly or indirectly, whether voluntarily or involuntarily or by operation of law, or any interest in the Project, or suffering its title, or any interest in the Project to be divested, whether voluntarily or involuntarily, without the consent of the City or as otherwise approved or permitted under the Agreement, City may, at City's option, declare the outstanding principal amount of this Note, together with the then accrued and unpaid interest thereon and other charges hereunder, and all other sums secured by the Deed of Trust, to be due and payable immediately, and upon such declaration, such principal and interest and other sums shall immediately become and be due and payable without demand or notice, all as further set forth in the Deed of Trust. All costs of collection, including, but not limited to, reasonable attorneys' fees and all expenses incurred in connection with protection of, or realization on, the security for this Note, may be added to the principal hereunder, and shall accrue interest as provided herein. City shall at all times have the right to proceed against any portion of the security for this Note in such order and in such manner as such City may consider appropriate, without waiving any rights with respect to any of the security. Any delay or omission on the part of the City in exercising any right hereunder, under the Agreement or under the Deed of Trust shall not operate as a waiver of such right, or of any other right. No single or partial exercise of any right or remedy hereunder or under the Agreement or any other document or agreement shall preclude other or further exercises thereof, or the exercise of any other right or remedy. The acceptance of payment of any sum payable hereunder, or part thereof, after the due date of such payment shall not be a waiver of City's right to either require prompt payment when due of all other sums payable hereunder or to declare an event of Default for failure to make prompt or complete payment. 15. Permissible Refinancing. The Borrower shall only be permitted to refinance under the following circumstances, after obtaining prior approval of the Deputy City Manager or his /her designee: a. refinance in order to obtain a better /lower interest rate; or b. refinance for major rehabilitation /repairs necessary to preserve the Property. 16. Successors and Assigns. Whenever "City" is referred to in this Note, such reference shall be deemed to include the City of Santa Ana and its successors and assigns, including, without limitation, any subsequent assignee or holder of this Note. All covenants, provisions and agreements by or on behalf of Borrower, and on behalf of any makers, endorsers, guarantors and sureties hereof which are contained herein shall inure to the benefit of the City and City's successors and assigns. 17. Buy Out Option. In the event that there is a decision to sell the Property to an outside entity not affiliated with the Developer, its Managing General Partner or its Administrative General Partner, the Managing General Partner of Borrower or its affiliate Orange Housing Development Corporation shall be given the first right of refusal or the General B -6 1076 \49V 843311.2 Partners may exercise the purchase option pursuant to the Borrower's Partnership Agreement. If neither of these options or the right of first refusal are exercised by the General Partners of Borrower, then the City shall have the second right of refusal. 18. Miscellaneous. Time is of the essence hereof This Note shall be governed by and construed under the laws of the State of California except to the extent Federal laws preempt the laws of the State of California. Borrower irrevocably and unconditionally submits to the jurisdiction of the Superior Court of the State of California for the County of Orange in connection with any legal action or proceeding arising out of or relating to this Note. Borrower also waives any objection regarding personal or in rem jurisdiction or venue. Signatures on Following Page B -7 1076\49\1 843311.2 IN WITNESS WHEREOF, Borrower has executed this City Promissory Note as of the date set forth hereinabove. BORROWER: Depot at Santiago, LP, a California limited partnership By: OHDC Depot, LLC, a California limited liability company, its managing general partner By: Orange housing Development Corporation, a California nonprofit corporation, its sole member C Eunice Bobert, Chief Executive Officer By: C &C Depot, LLC, a California limited liability company, its administrative general partner By: C & C Development Co., LLC, a California limited Liability company, its sole member 1076 \49 \1843311.2 Todd R. Cottle, its member Barry A. Cottle, Trustee of The Cottle ,Family Trust Dated 3/8/1987, its member IM.