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HomeMy WebLinkAboutSANTA ANA ARTS COLLECTIVE, L.P. (META HOUSING PROJECT)RECORDING REQUESTED BY A-2017.173 FIRST AMERICANTITLE INSURANCE CO. ($/p�L NATIONAL COMMERCIAL SERVICES NCS Ig3y3i SMS FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 6103 & 27383 When Recorded Mail to: Recorded in Official Records, Orange County Hugh Nguyen,Clerk-Recorder 11111111111111111111111111111111111111111111111111111111111111111 No FEE City of Santa Ana + $R0009442 8 3$ - Clerk of the Council 2017000308369 3:25 pm 07126117 20 Civic Center Plaza (M-30) 7 405 Al2 127 P,O. Box 1988 0.00 0.00 0.00 0.00 376.00 0.00 0.00 0.00 Santa Ana, California 92702 Attention: Clerk of the Council 9AC E AgOVE TMSLM FOR RECO IN E FREE RECORDING REQUESTED [Government Code Section 61031 FIRST AMENDED AND RESTATED LOAN AGREEMENT by and between the CITY OF SANTA ANA, P4rC1 SANTA ANA ARTS COLLECTIVE, L.P. (1666 N. Main Street, Santa Ana, California) Dated: July 5"', 2017 THIS DOCUMENT WAS SIGNED IN COUNTERPART AND IS E RECORDABLE ORDABE BLLE ONDOCUMENT RECORDING REQUESTED BY A-2017-173 FIRST AMERICAN TITLE INSURANCE CO. NATIONAL COMMERCIAL SERVICES NCSIcI,310I-5Mj FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 6103 & 27383 When Recorded Mail to: City of Santa Ana Clerk of the Council 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, California 92702 Attention: Clerk of the Council .PACE ABOVE THIS LINE FORRECORDINO E FREE RECORDING REQUESTED [Government Code Section 61031 FIRST AMENDED AND RESTATED LOAN AGREEMENT by and between the CITY OF SANTA ANA, and SANTA ANA ARTS COLLECTIVE, L.P. (1666 N. Main Street, Santa Ana, California) Dated: July 5, 2017 FIRST AMENDED AND RESTATED LOAN AGREEMENT INCLUSIONARY HOUSING PROGRAM/CDBG FUNDS THIS FIRST AMENDED AND RESTATED LOAN AGREEMENT (the "Agreement") dated, for identification purposes only, as of July 51", 2017, is made and entered into by and between the City of Santa Ana, a charter city and municipal corporation ("City") and Santa Ana Arts Collective, L.P. ("Developer") hereby amends and restates the original unrecorded Loan Agreement executed May 1, 2016 with reference to the following: RECITALS: A. The City is the recipient of Community Development Block Grant ("CDBG") funds from HUD pursuant to Tile I of the Housing and Community Development Act of 1974, as amended ("Act') and 24 CFR 570 ("CDBG Regulations"), Catalog of Federal Domestic Assistance (CFDA) Number 14.218, and Federal Award Identification Number (FAIN) B -15 -MC -06-0508 in the amount of $5,434,375. B. The City is authorized by the CDBG Regulations to expend funds to increase the supply of low- and moderate -income housing available at affordable housing costs. C. The Housing Opportunity Ordinance, Santa Ana Ordinance No. NS -2881, established standards and procedures to encourage the development of housing that is affordable to a range of households with varying income levels. Pursuant to Santa Ana Municipal Code ("SAMC") section 41-1904(e), developers may pay an in -lieu fee in certain instances to satisfy the inclusionary requirements. These funds are deposited into the Inclusionary Housing Fund, as defined by SAMC section 41-1901, and are to be used to increase and improve the supply of affordable housing per SAMC section 41-1909. D. In order to utilize money in the Inclusionary Housing Fund, the City issued a Request for Proposals on June 1, 2015, seeking affordable housing projects. After reviewing all applications, the Developer's project was selected and approved for funding by the Santa Ana City Council on November 3, 2015. E. Developer is entering into this agreement to acquire and, subject to entitlement approvals, develop an adaptive reuse project consisting of a fifty-eight (58) unit multi -family residential housing development, with live/work units and a possible commercial art studio, as well as a community room (the "Project") located at 1666 N. Main Street, within the City of Santa Ana, California, and legally described in Exhibit A attached hereto (the "Property"). The CDBG funds referenced herein shall assist in the rehabilitation only and the Inclusionary Housing funds will assist in the construction and soft costs of said Project. F. In furtherance of the Inclusionary Housing Program and CDBG guidelines, Developer has applied to the City for a loan with which to: 1. provide deeper affordability and construct the improvements to the Property, and 2. thereafter to maintain, operate and professionally manage the Project as decent, safe, sanitary and affordable rental housing. G. The City, on certain terms and conditions, desires to make such loan ("City Loan") to Developer in order to make possible the rehabilitation and construction of the Project, thereby expanding the supply of decent, safe, sanitary and affordable housing. H. If there is any inconsistency between Federal, State, and local guidelines with regard to any of the terms and conditions contained herein, the more stringent shall apply. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, City and Developer agree as follows: DEFINITIONS AND INTERPRETATION 1.1 Defined Terms. All capitalized terms used herein, including, without limitation, in the Recitals above and in all other Project Documents, unless otherwise expressly defined, are defined where first used in this Agreement and/or as set forth in this Article 1. "Affordable Housing" means housing operated in accordance with the requirements of 24 CFR 570. "Affordability Restrictions on Transfer of Property" means that certain documents affecting real property benefiting the City, attached hereto as Exhibit B. "Affordable Rent" means the monthly rents which do not exceed the maximum amount applicable to Extremely Low, Very Low and Low Income households, as promulgated by the U.S. Department of Housing and Urban Development (HUD), or by the California Tax Credit Allocation Committee, as applicable. "AHSC Loan" means a permanent loan of Affordable Housing and Sustainable Communities program funds from HCD administered by the California Strategic Growth Council in the amount of $4,944,130 "AHSC Deed of Trust" means any deed(s) of trust securing the AHSC Loan encumbering the Property. "AHSC Documents" means, collectively, the loan agreement governing the AHSC, the AHSC Note, the AHSC Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the AHSC Loan. "Building Permit" means the building permit(s) issued by City and required for the construction, if any. "Business Day" means any Monday, Tuesday, Wednesday, Thursday or Friday on which Santa Ana City Hall is open to the public for the conduct of City affairs. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 31. "CDBG Deed of Trust" means the deed of trust encumbering the Property, in the form attached hereto as Exhibit E, to be executed by Developer pursuant to Section 5.13.2 in order to secure the CDBG Promissory Note. "CDBG Loan" means the CDBG funds that will be awarded to the Developer under this agreement that must be repaid through residual receipts. "CDBG Promissory Note" means that certain Promissory Note in the original principal amount of $500,000 in the form attached hereto as Exhibit F, and to be executed by Developer in favor of City to evidence the obligation of Developer to repay the City Loan through residual receipts as further described in the CDBG Promissory Note. "Certificate of Completion" has the meaning set forth in Article 17. "City" means the City of Santa Ana, California, a charter city and municipal corporation. "City Loan" means, collectively, the CDBG Loan and the Inclusionary Loan. "City Project Manager" shall mean the City Manager and/or his/her designee. "Close of Escrow" shall mean the date upon which the Loan Agreement and City Deed of Trust is recorded in the Official Records of the County. "Closing Statement" means the final statement of Developer's Escrow account for the purchase of the Property pursuant to the purchase contract. "Community Development Block Grant" or "CDBG" has the meaning set forth in Recital "A" above. "County" means the County of Orange, California. "Developer" means Santa Ana Arts Collective, L.P., a California limited partnership. "Developer's Representative" shall mean an officer of the General Partner of Developer or his/her designee. "Extremely Low Income" means an adjusted income which does not exceed thirty percent (30%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "Event of Default" has the meaning set forth in Section 20.1. "General Partner" means the Santa Ana Arts Collective, LLC, a California limited liability company, and WCH Affordable XV11I, LLC, a California limited liability company. "Governmental Authority" means any governmental or quasi governmental agency, board, bureau, commission, department, court, administrative tribunal or other instrumentality or authority, and any public utility. "Hazardous Materials" means flammable materials, explosives, radioactive materials, hazardous wastes, toxic substances and similar substances and materials, including all substances and materials defined as hazardous or toxic wastes, substances or materials under any applicable law, including without limitation the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et sees ., and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq., as amended. "Housing Opportunity Ordinance" means the Santa Ana Ordinance No. NS -2881, and as such terms may be amended by the Santa Ana City Council in the future. "HUD" means the United States Department of Housing and Urban Development and any successors or assigns thereof. "Improvements" means all improvements and fixtures now and hereafter comprising any portion of the Property, including, without limitation, landscaping, trees and plant materials; and offsite improvements, as required through the City of Santa Ana Planning and Building Agency entitlement process. "Inclusionary Deed of Frust" means the deed of trust encumbering the Property, in the form attached hereto as Exhibit C, to be executed by Developer pursuant to Section 5.B.1 in order to secure the Inclusionary Promissory Note. "Inclusionary Housing Fund" means the fund created by the City of Santa Ana in which all fees collected in compliance with the Housing Opportunity Ordinance shall be deposited, as defined by Santa Ana Municipal Code section 41- 1901 and applied by Santa Ana Municipal Code section 41-1909. "Inclusionary Loan" means the Inclusionary Funds that will be awarded to the Developer under this agreement that must be repaid through residual receipts. "Inclusionary Promissory Note" means that certain Promissory Note for Inclusionary Funds in the original principal amount of $4,775,000.00 in the form attached hereto as Exhibit D, and to be executed by Developer in favor of City to evidence the obligation of Developer to repay the Inclusionary Loan through residual receipts as further described in the Inclusionary Promissory Note. "Indebtedness" of a person means (a) all indebtedness for borrowed money, (b) notes payable and drafts accepted representing extensions of credit, whether or not representing obligations for borrowed money, (c) any obligation for the purchase of property or services in excess of $10,000 in the aggregate that is (i) deferred for more than six (6) months, or (ii) evidenced by a note or similar instrument, and (d) all recourse and all non-recourse indebtedness secured by any Lien on any property or asset of such person (whether or not assumed by such person). "Indemnitees" has the meaning set forth in Section 14.5. "Laws" means all statutes, laws, ordinances, regulations, orders, writs, judgments, injunctions, decrees or awards of the United States or any state, county, municipality or other Governmental Authority. "Lien" means any lien, mortgage, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any lien or security interest). "Loan Documents" means, collectively, this Agreement, the Inclusionary Promissory Note, the Inclusionary Deed of Trust, CDBG Promissory Note, CDBG Deed of Trust, Affordability Restrictions on Transfer of Property, Project Budget, Scope of Work / Schedule of Performance, and any other agreement, document, or instrument that the City reasonably requires in connection with the execution of this Agreement or from time to time to effectuate the purposes of this Agreement. "Low Income" means an adjusted income which does not exceed eighty percent (80%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "Median Income for the Area" means the median income for the Orange County, California PMSA as most recently determined by HUD. Also may be referred to interchangeably in the Loan Documents as "Area Median Income" or "AMP "Partnership Agreement" means the Second Amended and Restated Agreement of Limited Partnership of Santa Ana Arts Collective, L.P., dated as of July 2017. "Permitted Encumbrances for the Affordable Housing Restrictions" means collectively, the Senior Loan Deed of Trust and AHSC Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing, which shall include all title exceptions set forth on City's title policy, all documents evidencing the State of California Housing and Community Development loan to encumber the Property and the TCAC Regulatory Agreement. "Permitted Encumbrances for the City Deed of Trust" means the Senior Loan Deed(s) of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing, which shall include all title exceptions set forth on City's title policy, all documents evidencing the State of California Housing and Community Development loan to encumber the Property and the TCAC Regulatory Agreement. "Project" means the construction of the Improvements upon the Property by Developer pursuant to this Agreement. "Project Budget" means the line-item budget for the Project attached hereto as Exhibit G, as modified from time to time in accordance with this Agreement. "Project Costs" means all costs of any nature incurred in connection with the Project in accordance with generally accepted accounting principles. "Property" means the property that is located at 1666 N. Main Street in the City of Santa Ana, and is more fully described in the "Legal Description" of the Property attached hereto as Exhibit A and incorporated herein by reference. "Scope of Work/Schedule of Performance" means the detailed statement of the work to be performed by Developer on and to the Property pursuant to this Agreement, along with the Schedule of Performance setting forth timeframes for certain tasks, which document is attached hereto as Exhibit H. "Senior Lender" means a commercial financial institution providing the Senior Loan or any other holder of the Senior Loan Note and its successors and assigns. The initial Senior Lender will be Bank of America, N.A and California Community Reinvestment Corporation is projected to become the Senior Lender after conversion of the loan to permanent status. "Senior Loan" means a loan from any Senior Lender(s) in a position superior to the City Loan. "Senior Loan Deed of Trust" means any deed(s) of trust securing any Senior Loan by encumbering the Property. "Senior Loan Documents" means, collectively, the loan agreement governing the Senior Loan, the Senior Loan Note, the Senior Loan Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the Senior Loan. "Senior Loan Note" means the promissory note evidencing the Senior Loan from the Senior Lender. "Term of Affordability" the terms and conditions contained herein shall remain in effect for fifty-five (55) years from the date of issuance of the Certificate of Completion. "Very Low Income" means an adjusted income which does not exceed fifty percent (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. 1.2 Sineular and Plural Terms. Any defined term used in the plural in this Agreement shall refer to all members of the relevant class and any defined term used in the singular shall refer to any number of the members of the relevant class. 1.3 References and Other Terms. Any reference to this Agreement shall include such document both as originally executed and as it may from time to time be modified. References herein to Articles, Sections and Exhibits shall be construed as references to this Agreement unless a different document is named. References to subparagraphs shall be construed as references to the same Section in which the reference appears. The term "document" is used in its broadest sense and encompasses agreements, certificates, opinions, consents, instrurnents and other written material of every kind. The terms "including" and "include" mean "including (include) without limitation." 1.4 Exhibits Incorporated. All attachments and exhibits to this Agreement, as now existing and as the sarne may from time to time be modified, are incorporated herein by this reference. 2. [RESERVED] SCOPE OF WORK/PROJECT BUDGET A "Scope of Work" and "Schedule of Performance" for the Property is attached hereto as Exhibit H. Any material change to the Scope of Work/Schedule of Performance requested by the Developer shall be subject to the prior written approval of the City Project Manager. The Scope of Work/Schedule sets forth the construction work that shall be performed on the Property and timeframes for approvals of such work. A line -item budget for the Project, including a summary statement of sources and uses of funds, is incorporated into Exhibit G (the "Project Budget"). Any material change to the Project Budget requested by Developer shall be subject to the prior written approval of the City Project Manager. Notwithstanding the foregoing, the City's approval of a change order shall not be required unless the approval of the Senior Lender is required with respect to such change order. 4. [RESERVED] 5. CITY LOAN: The Inclusionary Loan shall be evidenced by the Inclusionary Promissory Note and the CDBG Loan shall be evidenced by the CDBG Promissory Note in the forms attached hereto as Exhibit D and Exhibit E. The Inclusionary Loan and the CDBG Loan shall be secured by the Inclusionary Deed of Trust and CDBG Deed of Trust, respectively, in the forms attached hereto as Exhibit C and Exhibit F. The terms and conditions of the City Loan are as set forth in the Inclusionary Promissory Note and CDBG Promissory Note. The term of affordability for the Project is fifty-five years from the receipt of Certificate of Occupancy for the Project, or repayment of the City Loan, whichever is longer. A. INCLUSIONARY HOUSING FUNDS: 1. Amount and Purpose. Subject to the terms and conditions of this Agreement, City agrees to make a loan to Developer from Inclusionary Housing funds in the principal amount of up to $4,775,000.00 for the construction and other costs of the Project. B. CDBG FUNDS 1. Amount and Purpose. Subject to the terms and conditions of this Agreement, City agrees to make a loan of CDBG funds to Developer in the principal amount of up to $500,000.00 solely for the property rehabilitation -related costs of the Project. 6. CONDITIONS TO DISBURSEMENT OF LOAN PROCEEDS 6.1 Conditions Precedent. City's obligation to disburse the loan is subject to the satisfaction, or waiver by the City Project Manager, of the following conditions precedent: (a) Loan Documents. Developer shall have delivered to the Escrow Holder, signed by the authorized officer or officers of Developer, with such signature(s) acknowledged where necessary, each of the following documents: (i) this Loan Agreement; (ii) the Inclusionary Promissory Note ($4,775,000); (iii) the Inclusionary Deed of Trust; (iv) CDBG Promissory Note ($500,000); (v) CDBG Deed of Trust; and (vi) the Affordability Restrictions on Transfer of Property. (b) Title Insurance. City shall have received an ALTA Extended (LP - 10) Loan Policy (6-17-06), or evidence of a commitment therefore satisfactory to City, issued by First American Title Insurance Company and in form and substance satisfactory to City, together with all endorsements and binders required, naming City as the insured, in a policy amount of not less than the total City Loan Amount, showing Developer as the fee owner of the Property and insuring the Inclusionary Deed of Trust and CDBG Deed of Trust to be valid priority liens on the Property. This Agreement, the Inclusionary Promissory Note, Inclusionary Deed of Trust, CDBG Promissory Note, and CDBG Deed of Trust shall all be subordinate to any Senior Loan Note and Senior Loan Deed of Trust and to the AHSC Loan Documents. (c) Affordability Restrictions on Transfer of Property. Developer shall have delivered to the Escrow Holder, in the form attached hereto as Exhibit B, the Affordability Restrictions on Transfer of Property pursuant to which, among other things, Developer agrees that the Property shall be used only for decent, safe, sanitary and affordable rental housing pursuant to the affordability requirements of Code of Federal Regulations ("CFR") section 92.252 or 92.254 and California Health and Safety Code ("H&S") sections 50052.5 and 33334.3, as applicable. City's Affordability Restrictions on Transfer of Property shall remain in first position on title and shall not be subordinated. (d) Documents Recorded. This Loan Agreement, the Inclusionary Deed of Trust, CDBG Deed of Trust and the Affordability Restrictions on Transfer of Property shall have been recorded in the Official Records of the County. (e) Request for Notice. For the benefit of City, Escrow Holder shall have recorded a request for notice of default of the Senior Loan (the "Request for Notice of Default"). (f) Insurance. City shall have received evidence satisfactory to the City Attorney that all of the policies of insurance required by Section 19 of this Agreement are in full force and effect. (g) Representations and Warranties. The representations and warranties of Developer contained in this Agreement and the other Loan Documents shall be correct in all material respects as of the Close of Escrow as though made on and as of that date, and if requested by the City Project Manager, City shall have received a certificate to that effect signed by Developer's Representative. (h) No Default. No Event of Default by Developer shall have occurred, and no event shall have occurred which, with the giving of notice or the passage of time or both, would constitute an Event of Default by Developer under this Agreement, and if requested by the City Project Manager, City shall have received a certificate to that effect signed by Developer's Representative. 6.2 Disbursement Procedures for Loan(s). The City Loan proceeds shall be disbursed through Escrow to finance the acquisition and construction of the Project (as evidenced in Exhibit G). The City Loan proceeds shall not be used for any purpose other than for acquisition and predevelopment and construction related costs, including developer fee and soft costs related to the development of the Project (costs all subject to City's prior review). However, CDBG Funds shall only be used for property rehabilitation -related costs of the Project. 6.3 First Disbursement. City's obligation to make the first disbursement of the Loan is subject to satisfaction of the following conditions precedent: (a) General Contractor. If the City Project Manager has not yet approved the General Contractor, the City Project Manager shall have approved the identity and qualifications of the General Contractor. (b) Contract for construction. The City Project Manager must have reviewed and approved the contract for construction. 6.4 Termination for Failure of Condition. If (a) any of the conditions set forth herein are not timely satisfied (subject to applicable notice and cure rights) or waived by the City Project Manager, and (b) City is not in default under this Agreement, City may terminate this Agreement without any further liability on its part by giving written notice of termination to Developer. Upon the giving of such notice, all principal, interest and other amounts owing under the specified due date. 6.5 Any Disbursement. City's obligation to make any disbursement of the Loan (including the first and final disbursements is subject to the satisfaction of the following conditions precedent: (a) Satisfactory Progress. The City Project Manager shall be satisfied, based on his/her own inspections or other reliable information that the construction is progressing satisfactorily in conformance with all applicable laws and other requirements (including the City's Inclusionary Housing guidelines and CDBG federal regulations). (b) Condition of Title. Either (i) the City Project Manager reasonably believes that no event has occurred since the Close of Escrow that would give rise to a colorable claim against the Property (e.g., a mechanic's lien) superior to the claim of City against the Property with respect to the subject disbursement, or if such claim is made, then City Project Manager shall receive satisfactory evidence that such claim has been bonded over until its resolution; or (ii) City must have received, at Developer's expense but payable out of the Loan proceeds from the title insurer who issued City's LP -10 Title Policy, all endorsements thereto then reasonably required by City (including, without limitation, CLTA Form 122 -- priority of advance endorsements). (c) Representations and Warranties. The representations and warranties of Developer contained in this Agreement and the other City Loan Documents shall be correct in all material respects as of the date of the disbursement as though made on and as of that date. (d) No Default. No Event of Default by Developer shall remain uncured (unless, to the extent permitted under this Agreement, Developer is diligently taking action to cure such default) and no event shall have occurred which, with the giving of notice or the passage of time or both, would constitute an Event of Default by Developer. 6.6 Final Disbursement. City's obligation to disburse that portion of the Loan funds retained pursuant to Section 6.12 is subject to the satisfaction of the following additional conditions precedent: (a) Construction Complete. The construction of the Project shall be complete. (b) Certificate of Occupancy Issued. Any portion of the construction work requiring inspection or certification by any Governmental Authority shall have been inspected and certified as complete. Developer shall request that the Building Department issue a Certificate of Occupancy, a copy of which shall be delivered to the City Project Manager, in order for final disbursement to occur. (c) Lien Free. At least one of the following shall have occurred: (i) Thirty-five (35) days shall have passed since the recording of a valid notice of completion for the construction, and no mechanic's or materialman's lien shall be outstanding; or (ii) Ninety-five (95) days shall have passed since actual completion of the construction, and no mechanic's or materialman's lien shall be outstanding, or Developer shall have bonded over any such lien to City's reasonable satisfaction. 6.7 Waiver of Conditions. The conditions set forth pertaining to City's obligation to make disbursements of the Loan proceeds are for City's benefit only and the City Project Manager may waive all or any part of such rights by written notice to Developer. 6.8 Disbursement Requests. The Loan proceeds shall be disbursed on a line -item by line -item basis in accordance with the Project Budget and subject to the conditions in this section. In no event shall City have any obligation to disburse any amount for any item in excess of the amount allocated to such item in the Project Budget. Disbursements shall be made only upon Developer's written request in the form of a Disbursement Request showing all costs which Developer intends to fund with such disbursement, itemized in such detail as City may reasonably require, accompanied in each case by (a) invoices and lien releases satisfactory to City, including in any event partial lien releases executed by each contractor and subcontractor who has received any payment for work performed, and (b) all other documents and information reasonably required by City. Disbursement Requests shall be submitted no less than ten (10) Business Days prior to the date of the requested disbursement, and shall not be submitted more often than monthly. Prior to each disbursement by City of proceeds of the loan, Developer shall deliver to City a draw request ("Draw Request"), and all required supporting information as set forth in the Loan Documents or as otherwise reasonably required by City in order to provide information for evaluating the requested disbursement pursuant to customary construction lending practices of institutional lenders in Southern California. City shall notify the Developer of approval or disapproval of each Draw Request within five (5) Business Days after receipt of the Draw Request, using the City's "Disbursement/Change Order Approval Notice". City shall have the right, but not the obligation, to discontinue processing Draw Requests unless and until receipt of notification from the other of approval or disapproval of each outstanding Draw Request. 6.9 Manner of Disbursement. City may make any disbursement by check payable to Developer; or on a voucher basis; or by check payable jointly to Developer and any contractor, subcontractor or other claimant; or directly to any such claimant; or by any other means reasonably selected by City. 6.10 Cost Overruns. In the event that, at any time and for any reason, (a) the actual cost reasonably estimated by City or Developer to be required to complete all matters included in any line item in the Project Budget exceeds the amount allocated to that line item in the Project Budget, (b) Project costs for any matters not covered by a specific line item have been or will be incurred, or (c) the undisbursed portion of the Loan proceeds together with any other available construction sources is or may be insufficient to pay all construction of the Project that may be payable under the City Loan Documents or otherwise in connection with the construction, Developer shall, within ten (10) days after it receives written notice thereof from City of any of the foregoing matters, do one or more of the following: (a) provide satisfactory evidence to City that Developer has previously paid such excess or otherwise provided for such insufficiency (collectively, the "Excess Cost") with funds from a source other than the City Loan; (b) reallocate sufficient funds to pay the Excess Cost from funds allocated to "Contingency" in the Project Budget; provided, however, that the City Project Manager's consent to any such reallocation shall be required; or (c) deposit an amount equal to the Excess Cost in a non-interest bearing account (the "Overrun Account") with City or Senior Lender from which withdrawals may be made only with the consent of the City Project Manager or Senior Lender but which will be exhausted prior to any further disbursement for any line item, so that any resulting surplus in any line item of the Project Budget will then be reallocated to the line item(s) in which the Excess Costs are expected to be incurred. City shall have no obligation to make further disbursements until Developer has paid or otherwise provided for the overrun as required above. Amounts deposited by Developer in the Overrun Account for any Excess Costs shall be disbursed by City or Senior Lender prior to the disbursement of any remaining Loan proceeds in the manner described in subsection 9.3(c). 6.11 Cost Savings. Upon completion of and disbursement for all matters covered by any line items in the 'Project Budget, any remaining undisbursed amounts allocated to that line item shall be reallocated to "Contingency" and thereafter be available for disbursement in accordance with the terms of this Agreement. 6.12 Retainage. City will withhold a Retainage of 10% from each Disbursement for each of the Hard Cost line items of the Project Cost Breakdown (and other line items thereof designated for withholding of retainage) until all conditions to the final Disbursement of Hard Costs have been satisfied. In lieu of City's withholding Retainage, Developer can by written notice to City elect not to draw any overhead or profit as would otherwise be permitted under the Construction Contract until such time as Retainage would otherwise have been released. City shall not retain funds for building materials purchased by Developer for which Developer supplies documentation to City proving payment in full or for soft costs. 6.13 Holdback. The retainage otherwise available for disbursement shall be subject to a holdback of one hundred twenty-five percent (125%) of the estimated cost (as determined by the City Project Manager) for "punch -list" items. Such holdback will be released when all punch -list items have been completed to the satisfaction of City. 6.14 Waiver of Disbursement Conditions. Unless City otherwise agrees in writing, the making by City of any disbursement with knowledge that any condition to such disbursement is not fulfilled shall constitute a waiver of such condition only with respect to the particular disbursement made, and such condition shall be condition to all further disbursements until fulfilled. 6.15 Modification of Disbursement Conditions and Procedures. The City Project Manager shall have the authority to modify the disbursement conditions and procedures set forth herein in order to conform them to the payment provisions of the contract for construction. 6.16 Other Terms and Conditions of Loan. A. The Note(s) shall become immediately due and payable, in the event of any of the following: (1) failure to complete the Project within four (4) years of the recording date; (2) violation of any of the use covenants and restrictions contained in this Agreement after the expiration of any applicable notice and cure periods; (3) an Event of Default by Developer which is not timely cured after expiration of any applicable notice and cure periods pursuant to the terms of this Agreement. 6.17 Closing Costs and Fees. Developer shall pay (a) all escrow fees and charges, (b) all recording fees and charges on any document recorded pursuant to this Agreement, and (c) the premium for the title insurance required hereunder. 7. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE PROJECT 7.1 Use Covenants and Restrictions. Developer agrees and covenants, which covenants shall run with the land and bind Developer, its successors, its assign and every successor in interest to the Property that Developer will make all of the rental units on the Property available to extremely low, very low and low income households at rents affordable to such households for fifty-five (55) years (except for one unit for the onsite manager). The Project shall consist of approximately fifty-eight (58) residential units. Enforceability of restrictions on the fifty-seven (57) units shall be enforced until the date that is fifty-five (55) years after the date on which the Certificate of Occupancy is issued. 7.2 Affordability Levels/Unit Mix: The proposed unit mix, initial rents, and levels of affordability are as follows: The remaining unit will be a 2 -bedroom unit reserved for the onsite manager. The affordable rents charged at the Project must comply with the standards set forth by California Tax Credit Allocation Committee (TCAC). Notwithstanding anything to the contrary contained in this Agreement, the Affordability Restrictions on Transfer of Property, and other than HOME assisted units, restricted (as to both income and rent levels) at 30% of AM[, in the event of a foreclosure, or delivery of deed in lieu of foreclosure, of any Senior Loan, then the (1) the maximum qualifying tenant household income shall be increased to 60% of Area Median income adjusted for family size appropriate to the unit, and (2) the maximum annual affordable rent shall be increased to 30% of 60% of Area Median Income, as adjusted for family size appropriate to the unit. * Utility allowances must be deducted from the Maximum Gross Monthly Rent. The City of Santa Ana will provide the utility allowances based on the HUD Utility Schedule Model. 30% AMI 35% AMI 40% AMI 60% AMI Unit Size No. Units Rent No. Rent Units No. Rent Units No. Units Rent Total 1 Bedroom 14 $587 6 $685 6 $783 26 2 Bedroom 2 $704 --- --- --- 12 $1,408 14 3 Bedroom 4 $813 --- --- --- --- 13 $1,627 17 Total 20 6 6 25 57 The remaining unit will be a 2 -bedroom unit reserved for the onsite manager. The affordable rents charged at the Project must comply with the standards set forth by California Tax Credit Allocation Committee (TCAC). Notwithstanding anything to the contrary contained in this Agreement, the Affordability Restrictions on Transfer of Property, and other than HOME assisted units, restricted (as to both income and rent levels) at 30% of AM[, in the event of a foreclosure, or delivery of deed in lieu of foreclosure, of any Senior Loan, then the (1) the maximum qualifying tenant household income shall be increased to 60% of Area Median income adjusted for family size appropriate to the unit, and (2) the maximum annual affordable rent shall be increased to 30% of 60% of Area Median Income, as adjusted for family size appropriate to the unit. * Utility allowances must be deducted from the Maximum Gross Monthly Rent. The City of Santa Ana will provide the utility allowances based on the HUD Utility Schedule Model. 7.3 Rent Increases: On an annual basis, the City shall provide the Developer with the maximutn allowable schedule of rents for the Property that shall be no less than the rents set forth by TCAC. In no event can Developer charge any tenant more than such amount. 7.4 Maintenance of the Property. Solely at Developer's expense, Developer agrees to maintain the Property in a clean and orderly condition and in good condition and repair and keep the Property free from any accumulation of debris and waste materials. If at any time Developer fails to maintain, or cause to be maintained, the Property as required by this section, and said condition is not corrected after the expiration of a reasonable period of time not to exceed thirty (30) days from the date of written notice from the City, unless such condition cannot reasonably be cured within thirty (30) days, in which case Developer shall have such additional time as reasonably necessary to complete such cure, the City may perform the necessary maintenance and Developer shall pay all reasonable costs incurred for such maintenance. The City shall inspect the Property annually after the date of issuance of the Certificate of Completion as described in Section 17 of this Agreement. 7.5 Obligation to Refrain from Discrimination. Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, disability, religion, sex, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall Developer itself or any person claiming under or through him establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property. The foregoing covenants shall run with the land and shall remain in effect for the term of the Agreement. 8. DEFAULTS AND REMEDIES 8.1 Event of Default. Failure or delay by either party to perforin any term or provision of this Agreement within the time periods provided herein for such performance constitutes a default under the Agreement. If any party defaults in performance of its obligations, covenants or agreements hereunder, the defaulting parry shall be entitled to cure the default in accordance with this section. The injured party shall give written notice of default to the party in default, specifying the default complained of by the injured party. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. The defaulting party must, within thirty (30) days following service of said written notice, commence to cure, correct or remedy such failure or delay and shall complete such cure, correction, or remedy with reasonable diligence. Upon a default by Developer which is not cured within thirty (30) days following service of said notice, unless such default cannot reasonably be cured within thirty (30) days, in which case Developer shall have such additional time as reasonably necessary to complete such cure but no more than ninety (90) days, the City shall have the right to terminate this Agreement by delivery of written notice of termination to Developer. 8.2 Institution of Legal Actions. In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. 8.3 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 8.4 Damages. In the event that the City is liable for damages to Developer, such liability shall not exceed costs incurred by the Developer in the performance of this Agreement and shall not extend to compensation for loss of future income, profits or assets; provided, however, Developer's only remedy for any breach of this Agreement by the City shall be an action for specific performance of such party's obligations. 8.5 Nonrecourse Liability. Neither Developer, nor any partner of Developer, shall have any personal liability under this Agreement, or the attached Note and Deed of Trust, and any judgment, decree or order for the payment of money obtained in any action to enforce the obligation of Developer to repay the loan evidenced by such documents shall be enforceable against Developer only to the extent of Developer's interest in the Property. 9. GENERAL PROVISIONS AND WARRANTIES As a material inducement to City to enter into this Agreement, Developer represents and warrants as follows: 9.1 Formation, Qualification and Compliance. Santa Ana Arts Collective, L.P. is a California limited partnership. Developer is in compliance with all laws applicable to its business and has obtained all approvals, licenses, exemptions and other authorizations from, and has accomplished all filings, registrations and qualifications with, any Governmental Authority that are necessary for the transaction of its business. 9.2 Execution and Performance of Loan Documents. 9.2.1 'Developer has all requisite authority to execute and perform its obligations under the Loan Documents. 9.2.2 The execution and delivery by Developer of, and the performance by Developer of its obligations under, each Loan Document that has been authorized by all necessary action and does not and will not: (a) require any consent or approval not heretofore obtained of any person having any interest in Developer; (b) violate any provision of, or require any consent or approval not heretofore obtained under, any articles of incorporation, by-laws or other governing document applicable to Developer; (c) result in or require the creation of any lien, claim, charge or other right of others of any kind (other than under the City Loan Documents) on or with respect to any property now or hereafter owned or leased by Developer; (d) to best of its knowledge, violate any provision of any law presently in effect; or (e) constitute a breach or default under, or permit the acceleration of obligations owed under, any contract, loan agreement, lease or other agreement or document to which Developer is a party or by which Developer or any of its property is bound. 9.2.3 Developer is not in default, in any respect that is materially adverse to the interests of City under the Loan Documents or that would have any material adverse effect on the financial condition of Developer or the conduct of its business, under any law, contract, lease or other agreement or document described in sub -paragraph (d) or (e) of the previous subsection. 9.2.4 No approval, license, exemption or other authorization from, or filing, registration or qualification with, any Governmental Authority is required which has not been previously obtained in connection with: (a) the execution by Developer of, and the performance by Developer of its obligations under, the Loan Documents; and (b) the creation of the liens described in the Loan Documents. 9.3 Financial and Other Information. To the best of Developer's knowledge, all financial information furnished to City with respect to Developer in connection with the Loans (a) is complete and correct in all material respects as of the date of preparation thereof, (b) accurately presents the financial condition of Developer, and (c) has been prepared in accordance with generally accepted accounting principles consistently applied or in accordance with such other principles or methods as are reasonably acceptable to City. To the best of Developer's knowledge, all other documents and information furnished to City with respect to Developer, in connection with the Loans, are correct and complete insofar as completeness is necessary to give the City accurate knowledge of the subject matter. To the best of Developer's lmowledge ,Developer has no material liability or contingent liability not disclosed to City in writing and there is no material lien, claim, charge or other right of others of any kinds (including liens or retained security titles of conditional vendors) on any property of Developer not disclosed in such financial statements or otherwise disclosed to City in writing. 9.4 No Material Adverse Change. There has been no material adverse change in the condition, financial or otherwise, of Developer since the dates of the latest financial statements furnished to City. Since those dates, Developer has not entered into any material transaction not disclosed in such financial statements or otherwise disclosed to City in writing. 9.5 Tax Liability. Developer has filed all required federal, state and local tax returns and has paid all taxes (including interest and penalties, but subject to lawful extensions disclosed to City in writing) other than taxes being promptly and actively contested in good faith and by appropriate proceedings. Developer is maintaining adequate reserves for tax liabilities (including contested liabilities) in accordance with generally accepted accounting principles or in accordance with such other principles or methods as are reasonably acceptable to City. 9.6 Governmental Reguirements. To best of its knowledge, Developer is in compliance with all laws relating to the Property and all Governmental Authority approvals, including zoning, land use, planning requirements, and requirements arising from or relating to the adoption or amendment of, any applicable general plan, subdivision and parcel map requirement; environmental requirements, including the requirements of the California Environmental Quality Act and the National Environmental Policy Act and the preparation and approval of all required environmental impact statements and reports; use, occupancy and building permit requirements; and public utilities requirements. 9.7 Rights of Others. Developer is in compliance with all covenants, conditions, restrictions, easements, rights of way and other rights of third parties relating to the Property. 9.8 Litigation. There are no material actions or proceedings pending or, to the best of the Developer's knowledge, threatened against or affecting Developer or any property of Developer before any Governmental Authority, except as disclosed to City in writing prior to the execution of this Agreement. 9.9 Bankruptcy. To the best of Developer's knowledge, no attachments, execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings are pending or threatened against Developer, nor are any of such proceedings contemplated by Developer. 9.10 Information Accurate. To the best of Developer's knowledge, all information, regardless of its form, conveyed by Developer to City, by whatever means, is accurate, correct and sufficiently complete to give City true and accurate knowledge of its subject matter, and does not contain any misrepresentation or omission. 9.11 Conflicts of Interest. No member, official or employee of the City shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or employee participate in any decision relating to this Agreement which affects his/her personal interests or the interests of any corporation, partnership or association in which he/she has a direct or indirect financial interest. The Developer warrants that it neither has paid nor given, nor will pay or give, any third party any money or other consideration for obtaining this Agreement. 9.12 Nonliability of City Officials and Employees. No member, official or employee of the City shall be personally liable to the Developer in the event of any default or breach by the City or for any amount which may become due to Developer or on any obligations under the terms of this Agreement. 9.13 No Assignment. Developer expressly aclmowledges and agrees that the City has only agreed to assist the Developer as a means by which to induce the construction/development of the Project. Accordingly, Developer further expressly aclmowledges and agrees that this Agreement is a personal right of Developer that is neither negotiable, transferable, nor assignable except as set forth herein. Developer may assign some or all of its rights under the Agreement only with the prior written consent of the City Project Manager (such consent not to be unreasonably withheld), except that no prior consent is necessary for an assignment by a limited partner of Developer to an affiliate, or as otherwise provided in the Note or Deed(s) of Trust. 9.14 Applicable Law. This Agreement shall be interpreted, governed and enforced under federal and California state law with venue in Orange County, California. 9.15 Third Parties. This Agreement is made for the sole benefit of Developer and the City and their successors and assigns, and no other person or persons shall have any rights or remedies under or by reason of this Agreement or any right to the exercise of any right or power of the City hereunder or arising from any default by Developer, nor shall the City owe any duty whatsoever to any claimant for labor performed or materials furnished in connection with the construction of the Property. 9.16 Control of Properly. The parties aclmowledge that the City has not at anytime participated in any manner in the management or operation of the Property, and will not so participate at any time hereafter. 10. CONDITIONS FOR CONSTRUCTION 10.1 Permits and Approvals. Developer shall diligently obtain all permits, including all building permits, licenses, approvals, exemptions and other authorizations of Governmental Agencies required in connection with the construction and conversion of the Property. 10.2 Commencement and Completion of Construction. The construction of the Project shall be considered complete for purposes of this Agreement only when (a) all work described has been completed and fully paid for, and (b) all work requiring inspection or certification by Governmental Authority has been completed and all requisite certificates, approvals and other necessary authorizations (including required final certificates of occupancy) have been obtained. 10.3 Change Orders. The contract for construction shall not be modified except pursuant to change orders which require City consent pursuant to this Agreement. All change orders: (a) Subject to Section 3 above, shall be in writing, numbered in sequence, signed by Developer and submitted to City prior to the proposed effectiveness thereof and accompanied by any working drawings and a written narrative of the proposed change. (b) Shall be subject to the City Project Manager's prior written approval. 10.4 Entry and Inspection. At all times prior to completion of the construction, upon reasonable notice, City and its agents shall have (a) the right of free access to the Property and all sites away from the Property where materials for the construction are stored, (b) the right to inspect all labor performed and materials furnished for the construction, and (c) the right to inspect and copy all documents pertaining to the construction. 10.5 Compliance with Section 3 Clause. Section 3 of the Housing and Urban Development act of 1968, 12 U.S.C. 1701u, as amended by Section 915 of the Housing and Community Development Act of 1992 requires that economic opportunities generated by HUD financial assistance for housing and community development programs be targeted toward low- and very low- income persons. Whenever HUD assistance generates opportunities for employment or contracting, state and local grantees, as well as other recipients of HUD housing assistance funds must, to the greatest extent feasible, provide these opportunities to low- and very low- income persons and to businesses owned by or employing low- and very low- income persons. Section 3 applies to projects for which HUD's share of project costs exceeds $200,000 and contracts and subcontracts awarded on projects for which HUD's share or project costs exceeds $200,000 and the contract or subcontract exceeds $100,000. For purposes of this Section 3 Clause and compliance thereto, whenever the word "contractor" is used it shall mean and include, as applicable, the Developer, and its contractor and subcontractor(s), if any. The particular text to be utilized in any and all contracts of any contractor doing work covered by Section 3 shall be in substantially the form of the following, as reasonably determined by the City, or as directed by HUD or its representative, and shall be executed by the applicable contractor under penalty of perjury: (a) The work to be performed under this contract is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 170lu ("Section 3"). The purpose of Section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD -assisted projects covered by Section 3, shall, to the greatest extent feasible, be directed to low -and very low-income persons [inclusive of Very Low Income Persons, Very Low Income Households, and Very Low Income Tenants served by the Project], particularly persons who are recipients of HUD assistance for housing. (b) The parties to this contract agree to comply with HUD's regulations at 24 CFR part 135, which implement Section 3. As evidenced by their execution of this contract, the parties to this contract certify that they are under no contractual or other impediment that would prevent them from complying with the part 135 regulations. (c) The contractor agrees to send to each labor organization or representative of workers with which the contractor has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or workers' representative of the contractor's commitments under this Section 3 clause, and will post copies of notices in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the Section 3 preference, shall set forth minimum number of job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of person(s) taking applications for each of the position; and the anticipated date the work shall begin. (d) The contractor agrees to include this Section 3 clause in every subcontract subject to compliance with regulations in 24 CFR part 1.35, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this Section 3 clause, upon a finding that the subcontractor is in violation of the regulations 24 CFR part 135. The contractor will not subcontract with any subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR part 135. (e) The contractor will certify that any vacant employment positions, including training positions, that are filled (a) after the contractor is selected but before the contract is executed, and (b) with persons other than those to whom the regulations of 24 CFR part 135 require employment opportunities to be directed, were not filled to circumvent the contractor's obligations under 24 CFR part 135. (f) Noncompliance with HUD's regulations in 24 CFR part 135 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD assisted contracts." After the foregoing Section 3 Clause, there shall be a signature block for the contractor, as applicable, the following text shall be included immediately above the signature block: "The contractor/provider by his/her signature affixed hereto declares under penalty of perjury that contractor has read the requirements of the Section 3 Clause and accepts all its requirements contained therein for all of his/her operations related to this contract." To the extent applicable, the Developer shall comply and/or cause compliance with Section 3 Clause requirements for the Project. For example, when and if Developer or its contractor(s)/subcontractor(s) hire(s) full time employees, rather than volunteer labor or materials, Section 3 is applicable and all disclosure and reporting requirements apply. 10.6 Construction Information. From time to time during the course of the construction, within ten (10) Business Days following City's written demand therefore, Developer shall furnish requested reports of project costs, progress schedules and contractors' costs breakdowns for the construction, itemized as to trade description and item, showing the name of the contractor(s) and/or subcontractor(s), and including such indirect costs as real estate taxes, legal and accounting fees, insurance, architects' and engineers' fees, loan fees, interest during construction and contractors' overhead. 10.7 Protection Against Liens: Developer shall diligently file a valid Notice of Completion upon completion of the construction, diligently file a notice of cessation in the event of a cessation of labor on the construction for a period of thirty (30) days or more, and take all actions reasonably required to prevent the assertion of claims of lien against the Property. In the event that any claim of lien is asserted against the property or any stop notice or claim is asserted against the City by any person furnishing labor or materials to the Property, Developer shall immediately give written notice of the same to City and shall, promptly and in any event within ten (10) Business Days after written demand thereof, (a) pay and discharge the same, (b) effect the release thereof by delivering to City a surety bond complying with the requirement of applicable laws for such release, or (c) take such other action as City may require to release City from any obligation or liability with respect to such stop notice or claim. 11. FEDERAL - CDBG COVENANTS 11.1 Contract Provisions for Non -Federal Entity Contracts Under Federal Awards. Developer shall comply with the requirements at Appendix I1 to Part 200. 11.2 Qualification as Affordable Housing. As more particularly provided in the Affordability Restrictions on Transfer of Property, Developer shall use, manage and operate the Property in accordance with the requirements of 24 CFR 570, and California Health and Safety Code section 50052.5 so as to qualify the housing on the Property as Affordable Housing with affordable rents. 11.3 Tenant and Participant Protection. Developer shall comply with the requirements of 24 CFR 92.253. 11.4 [Intentionally Omitted] 11.5 Handicapped Accessibilitv. Developer shall comply with (a) Section 504 of the Rehabilitation Act of 1973, and implementing regulations at 24 CFR 8C governing accessibility of projects assisted under the CDBG Program; and (b) the Americans with Disabilities Act of 1990, and implementing regulations at 28 CFR 35-36 in order to make the ,Project readily accessible to and usable by individuals with disabilities. 11.6 Use of Debarred, Suspended, or Ineligible Participants. Developer shall comply with the provisions of 24 CFR 24 relating to the employment, engagement of services, awarding of contracts, or funding of any contractor or subcontractor during any period of debarment, suspension, or placement in ineligibility status. 11.7 Maintenanee of Drug -Free Workplace. Developer shall certify that Developer will provide a drug-free workplace in accordance with 24 CFR 84.13. 11.8 Lead -Based Paint. Developer shall comply with the requirements, as applicable of the Lead -Based Paint Poisoning Prevention Act (42 U.S.C. 4821-4846), Lead Safe Housing Rule, and implementing regulations at 24 CFR 35. 11.9 Affirmative Marketing. Developer shall implement and perform such affirmative marketing procedures and requirements for the Property as required by 24 CFR 92.351 and the City of Santa Ana's adopted affirmative marketing procedures and minority outreach program. 11.10 Equal Opportunity and Fair Housing. Developer shall carry out the construction and perform its obligations under this Agreement in compliance with all of the state and federal laws and regulations regarding equal opportunity and fair housing described in 24 CFR 92.350. Developer must also follow the requirements of Health and Safety Code section 33435. 11.11 Property Standards. Developer shall cause the Property to meet the housing quality standards set forth in 24 CFR 882.109, as well as all applicable local, state and federal codes and ordinances, including zoning ordinances. Developer shall also cause the Property to meet the current edition of the Model Energy Code published by the Council of American Building Officials. 11.12 Displacement and Relocation. Developer acknowledges and agrees that, pursuant to 24 CFR 92.253 and consistent with the other goals and objectives of this part, City must ensure that it has taken all reasonable steps to minimize the displacement of persons as a result of the construction. Furthermore, to the extent feasible, residential tenants must be provided a reasonable opportunity to lease and occupy a suitable, decent, safe, sanitary and affordable dwelling unit on the Property upon completion of the construction. Developer agrees to cooperate fully and completely with City in meeting the requirements of 24 CFR 92.253 and shall take all actions and measures reasonably required by the City Project Manager in connection therewith. All applicable state guidelines must also be followed. 11.13 Other Program Requirements. Developer shall carry out each activity in compliance with all federal laws and regulations described Subpart K 24 CFR 570, except that Developer does not assume City's responsibilities for environmental review in 24 CFR 570.604 or the intergovernmental review process in 24 CFR 570.612. 11.14 Request for Disbursements of Funds. Notwithstanding anything contained in this Agreement to the contrary, Developer may not request disbursements of funds under this Agreement until the funds are needed for payment of eligible costs (such funds shall be used solely towards the rehabilitation and soft costs of the Project). The amount of each request shall be limited to the amount needed. 11.15 Eligible Costs. Developer shall use CDBG Funds to pay costs defined as "eligible costs" pursuant to 24 CFR 92.206. 11.16 Records and Reports. Developer shall maintain and from tone to time submit to City such records, reports and information as the City Project Manager may reasonably require in order to permit City to meet the record keeping and reporting requirements required of it pursuant to 24 CFR 92.508. 11.17 Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. Developer shall comply with the requirements and standards of 2 CFR 200. 11.18 Conflict of Interest. Developer shall comply with and be bound by the conflict of interest provisions set forth at 24 CFR 570.611, as well as state regulations pertaining to conflict of interest. 11.19 Monitoring. Developer shall allow the City to conduct periodic inspections of each of the assisted units on the Property as required by the Program after the date of construction completion, with reasonable notice. Developer shall cure any defects or deficiencies found by the City while conducting such inspections within two weeks of written notice thereof, or such longer period as is reasonable within the sole discretion of the City. 11.20 Recertification of Tenant Income. (a) Developer shall take all necessary steps to review the income of all tenants prior to renting to them, as well as reviewing current tenants on an annual basis. (b) Developer shall allow the City to conduct periodic reviews of tenant Piles and files relating to affirmative marketing and outreach to insure the Project's compliance with applicable regulations and guidelines. (c) City assisted units continue to qualify as affordable housing despite a temporary non-compliance caused by increases in the incomes of existing tenants if actions satisfactory to HUD are being taken to ensure that all vacancies are filled in accordance with this section until the non-compliance is corrected. 11.21 Other CDBG Program Requirements. Developer shall comply with all other applicable requirements of the CDBG Program. 11.22 City Requirements. Developer shall comply with the following: (a) Onsite Services: The Developer shall provide on-site services that are available to the residents and shall report to the City annually the services provided. (b) Coordination with the WORK Center: The Developer and the Property Manager shall coordinate with the City's WORK Center to provide services and outreach to tenants, as well as provide information on employment during the construction of the Project. (c) Tenant Satisfaction Survey: The Developer shall complete and submit to the City biennial tenant satisfaction surveys of tenants. (d) Rental Inclusionary Housing Manual: The Developer shall also maintain compliance with the City's Inclusionary Housing Manual for Rental Projects. 11.23 Controlline Covenants. If there is a discrepancy between Local, State and Federal law with regard to any of the aforementioned covenants, the more stringent shall apply. 12. MAINTENANCE, MANAGEMENT, OPERATION, PRESERVATION AND REPAIR OF PROPERTY 12.1 Maintenance. Developer shall maintain the Property (and all abutting grounds, sidewalks, roads, parking and landscape areas which Developer is otherwise required to maintain) in good condition and repair; shall operate the Property in a businesslike manner; shall prudently preserve and protect its own as well as the City's interests in connection with the Property; shall not commit or permit any waste or deterioration of the Property (except for normal wear and tear); shall not abandon any portion of the Property or leave the Property unguarded or unprotected; and shall not otherwise act, or fail to act, in such a way as to unreasonably increase the risk of any damage to the Property or of any other impairment of City's interests under the Loan Documents. Without limiting the generality of the foregoing, and except as otherwise agreed by City in writing from time to time, Developer shall promptly and faithfully perform and observe the following provision: 1.2.1.1 Alterations and Repair. Developer shall not remove, demolish or materially alter any Improvement without City's prior consent, except to make non-structural repairs which preserve or increase the Property's value, and shall promptly restore, in a good and professional manner, any Improvement (or other aspect or portion of the Property) that is damaged or destroyed from any cause. 12.2 Compliance. Developer shall comply with all laws and requirements of Governmental Authority (including, without limitation, all requirements relating to the obtaining of Governmental Authority approvals), all Governmental Authority approvals and all rights of third parties, relating to Developer, the Property or Developer's business thereon. 12.3 Taxes and Impositions. Developer shall pay, prior to delinquency, all of the following (collectively, the "Impositions"): (a) all general and special real property taxes and assessments imposed on the Property; (b) all other taxes and assessments and charges of every kind that are assessed upon the Property (or upon the owner and/or operator of the Property) and that create or may create a lien upon the Property (or upon any personal property or fixtures used in connection with the Property), including, without limitation, non-governmental levies and assessments pursuant to applicable covenants, conditions or restrictions; and (c) all license fees, taxes and assessments imposed on City (other than City's income or franchise taxes) which are measured by or based upon (in whole or in part) the amount of the obligations secured by the Property. If permitted by law, ,Developer may pay any Imposition in installments (together with any accrued interest). 12.3.1 Right to Contest. Developer shall not be required to pay any Imposition so long as (a) its validity is being actively contested in good faith and by appropriate proceedings, (b) Developer has demonstrated to City's reasonable satisfaction that leaving such Imposition unpaid pending the outcome of such proceedings could not result in conveyance of the Property in satisfaction of such Imposition or otherwise impair the City's interests under the Loan Documents, and (c) Developer has furnished City with a bond or other security satisfactory in an amount not less than 100% of the applicable claim (including interest and penalties). 12.3.2 Evidence of Payment. Upon demand by City from time to time, Developer shall deliver to City, within thirty (30) days following the due date of any Imposition, evidence of payment reasonably satisfactory to City. 12.3.3 Books and Records. Developer shall maintain complete books of account and other records reflecting its operations (in connection with any other businesses as well as with respect to the Property), in accordance with generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to City, in accordance with 24 CFR 92.508. 12.4 [Intentionally Omitted] 12.5 Project Operating Budget. Developer must promptly deposit all project income directly into a segregated depository account established exclusively for the Project ("Project Operating Account"). Until the Certificate of Completion is issued, withdrawals from this account may be made only in accordance with the provisions of this Agreement and the approved ,Budget, as it may be revised from time to time with prior City approval. Developer may make withdrawals from this account solely for the payment of Project expenses and Project fees. Withdrawals from this account for other purposes may be made only with the prior written approval of the City. 12.6 Replacement Reserve Account. Developer must establish or cause to be established a segregated interest-bearing replacement reserve depository account ("Replacement Reserve Account") upon the conversion of the Senior Loan to permanent status. Developer must make monthly deposits from project income into the Replacement Reserve in accordance with the Senior Loan Documents, as amended from time to time. Developer may withdraw funds from the Replacement Reserve Account solely to fund capital improvements for the Project, such as replacing or repairing structural elements, furniture, fixtures or equipment of the. Project that are reasonably required to preserve the Project as set forth in the Senior Loan Documents. If no Senior Loan is in effect, Developer may not withdraw funds from the Replacement Reserve Account for any other purpose without the prior written approval of the City. 13. NONDISCRIMINATION COVENANTS 13.1 Obligation to Refrain from Discrimination. Developer covenants and agrees that: (a) In Use of Property. There shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, disability, religion, sex, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall Developer or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendors of the Property. (b) In Affordable Housing Restrictions. The foregoing covenant shall (a) be included in the Affordability Restrictions on Transfer of Property, (b) run with the land, and (c) remain effective for the term of the contract (for 55 years). (c) In Employment. In construction on the Property, Developer shall not discriminate against any employee or applicant because of race, color, creed, religion, sex, marital status, disability, national origin, or ancestry. Developer shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, disability, creed, religion, sex, marital status, disability, national origin, or ancestry. (d) In all Contracts. Developer shall cause the foregoing covenants to be inserted in all contracts for any work covered by this Agreement so that such provisions will be binding upon each contractor for the benefit of City, provided that the foregoing covenant shall not apply to contracts or subcontracts for standard commercial supplies or raw materials. 14. ENVIRONMENTAL MATTERS 14.1 Representation and Warranty. Except as disclosed in writing to the City, Developer has no knowledge (a) of the presence on, under or about the Property, now or in the past, of any Hazardous Materials, or of the transportation to or from the Property of any Hazardous Materials, (b) that asbestos or polychlorinated biphenyls (PCBs) are contained in or stored on the Property, or (c) that there are any underground storage tanks located in, on or under the Property. 14.2 Compliance with Environmental Laws. Developer shall (a) comply with all environmental laws and environmental permits applicable to the construction of the Property, (b) immediately pay or cause to be paid all costs and expenses incurred by reason of such compliance, (c) keep the Property free and clear of any environmental claims or liens imposed pursuant to any environmental law, and (d) obtain and renew all environmental permits required for ownership or use of the Property. 14.3 Presence of Hazardous Materials. Developer shall not, and shall not permit anyone else to, generate, use, treat, store, handle, release, or dispose of Hazardous Materials on the Property, or transport or permit the transportation of Hazardous Materials to or from the Property except for de minimis quantities used at the Property in compliance with all applicable environmental laws and required in connection with the routine operation and maintenance of the Property. 14.4 Notice of Environmental Matters. Developer shall immediately advise City in writing of any of the following: (a) any pending or threatened environmental claim against Developer or the Property, (b) any condition or occurrence that (i) results in noncompliance with any applicable environmental law, (ii) could reasonably be anticipated to cause the Property to be subject to any restrictions on the ownership, occupancy, use or transferability of the Property under any environmental law, or (iii) could reasonably be anticipated to form the basis of an environmental claim against the Property or Developer. 14.5 Environmental Indemnification by the Developer. Developer agrees to defend, indemnify and hold harmless the City and its respective officers, directors, employees and agents (collectively the "Indemnities ") from and against any and all obligations (including removal and remediation), losses, claims (including third party claims), suits, judgments, liabilities, penalties, damages (including consequential and punitive damages), costs and expenses (including consultants, and attorneys' fees) of whatever kind or nature whatsoever that may at any time be incurred by, imposed on, or asserted against the Indemnities directly or indirectly based on, or arising or resulting from the actual or alleged presence of Hazardous Materials on the Property. 15. OTHER AFFIRMATIVE COVENANTS While any obligation of Developer under the Inclusionary Promissory Note, Inclusionary Deed of Trust, CDBG Promissory Note, or CDBG Deed of Trust remain outstanding, the following provisions shall apply, except to the extent that City Project Manager otherwise consents in writing: 15.1 Existence. The Developer's managing and administrative general partners shall maintain its existence in good standing under the laws of the State of California, and Developer shall provide documentation of such status annually to the City. 15.2 Protection of Lien. Developer shall maintain the lien of the Inclusionary Deed of Trust and CDBG Deed of Trust as valid deeds of trust to the Senior Deeds of Trust on the Property and take all actions, and execute and deliver to City all documents, reasonably required by City from time to time in connection therewith. 15.3 Notice of Certain Matters. Developer shall give notice to City, within ten (10) days of Developer's learning thereof, of each of the following: (a) any filed litigation or claim affecting or relating to the Property and involving an amount in excess of $5,000; and any litigation or claim that might subject Developer or any general partner to liability in excess of $5,000, whether covered by insurance or not; (b) any dispute between Developer and a Governmental Authority relating to the Property, the adverse determination of which might materially affect the Property; (c) any change in Developer's principal place of business; (d) any aspect of the Improvements that is not in substantial conformity with the plans or code; (e) any Event of Default or event which, with the giving of notice or the passage of time or both, would constitute an Event of Default; (i) any material default by Developer or any other party under any Senior Loan document, or the receipt by Developer of any notice of default under any Senior Loan document; (g) the creation or imposition of any mechanics' or materialmans' lien or other lien against the Property which might materially affect the Property; and/or (h) any material adverse change in the financial condition of Developer. 15.4 Further Assurances. Developer shall execute and aclmowledge (or cause to be executed and acknowledged) and deliver to City all documents, and take all actions, reasonably required by City from time to time to confirm the rights created or now or hereafter intended to be created under the Loan Documents; to protect and further the validity, priority and enforceability of the Inclusionary Deed of Trust and CDBG Deed of Trust; to subject to the Deed(s) of Trust any property intended by the terms of any Loan Document(s) to be covered by the Inclusionary Deed of Trust and CDBG Deed of Trust or otherwise to carry out the purposes of the Loan Documents and the transactions contemplated thereunder. 15.5 Annual Financial Statements. Developer shall deliver to City, within one hundred fifty (150) days after the end of each Calendar Year, (a) a certified public accountant reviewed balance sheet for Developer as of the end of such Calendar Year and a certified public accountant reviewed statement of profit and loss for Developer and for Developer's operations in connection with the Property for such Calendar Year, together with all supporting schedules, (b) a certificate of such certified public accountant that such documents were reviewed by such certified public accountant in accordance with generally accepted accounting principles and otherwise comply with generally accepted accounting principles review requirements, and (c) a certificate of Developer's chief financial officer that such documents: (i) were prepared in accordance with generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to City, (ii) fairly present Developer's financial condition, (iii) show all material liabilities, direct and contingent, and (iv) fairly present the results of Developer's operations. Developer shall also provide the City with any other annual audit reports issued by other monitoring agencies. Developer shall include in said reports, a document in the "Form of Residual Receipts Report" attached hereto as Exhibit I and incorporated herein. 15.6 Audits and Access to Records. Developer agrees that City, the U.S. Department of Housing and Urban Development, the Comptroller General of the United States or any of their authorized representatives shall have the right of access, upon reasonable notice, to any books, documents, papers, or other records of Developer which are pertinent to this Agreement in order to make audits, examinations, abstracts, excerpts or transcripts. Developer will maintain all books and records pertaining to this Agreement for a period of not less than five (5) years after all matters pertaining to this Agreement (i.e., audit, disputes or litigation) are resolved in accordance with applicable federal or state laws, regulations or policies, and when a period of affordability or recapture applies to Developer's activities, for a period of not less than five (5) years after the affordability or recapture period ends. 15.7 Termite Inspection Report. Developer shall deliver a termite report pertaining to the Property to the City every fifth (5th) year beginning January 2020. 16. OTHER COVENANTS While any obligation of Developer under the Inclusionary Promissory Note, Inclusionary Deed of Trust, CDBG Promissory Note, or CDBG Deed of Trust remain outstanding, the following provisions shall apply, except to the extent that City Project Manager otherwise consents in writing: 16.1 Default on Senior Loan. Developer shall not default on any of the Senior Loan documents, provided however, that Developer shall have such period as is provided in the Senior Loan Documents during which to effectuate a cure. 16.2 Sale or Lease of Propertv. Unless and until Developer has received a Certificate of Completion for the construction from City, Developer shall not sell, lease, sublease or otherwise transfer all or any part of the Property or any interest therein without the prior written consent of the City Project Manager, which consent may be withheld in the City Project Manager's reasonable discretion. In connection with the foregoing consent requirements, Developer acknowledges that City relied upon Developer's particular expertise in entering into this Agreement and continues to rely on such expertise to ensure the satisfactory completion of the construction. Notwithstanding anything to the contrary contained herein, a "transfer" shall not include (i) atransfer of a General Partner's interest in Developer when made in connection with the exercise by the Developer's limited partner (the "Limited Partner") of its rights upon a default by a General Partner under the Developer's Partnership Agreement (the "Partnership Agreement") or upon a General Partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting General Partner is made within thirty (30) days of such default or, if such removal and substitution cannot reasonably be completed within thirty (30) days, so long as the Limited Partner commences to take action to remove and substitute the General Partner with a reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the Property to the Managing General Partner pursuant to the right of first refusal or to the General Partners pursuant to the purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's under and in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of an interest in a limited partner of the Developer. 17. CERTIFICATE OF COMPLETION Upon satisfactory completion of the construction and upon the request of Developer, or at its own election, the City of Santa Ana shall issue a Certificate of Completion. Such Certificate of Completion shall be, and shall so state, conclusive determination of satisfactory completion of the construction. If City declines to furnish a Certificate of Completion after written request from Developer, the City Project Manager shall, within thirty (30) days after receipt of the request, provide Developer with a written statement of the reasons therefore. The statement shall contain a description of the action Developer must take to obtain a Certificate of Completion. If the reason therefore is that the Developer has not completed a minor portion of the construction, City may, in its sole and absolute discretion, issue the Certificate of Completion upon the posting with City of a bond or other form of security acceptable to the City Project Manager in the amount of the fair value of the uncompleted work. A Certificate of Completion is not evidence of compliance with or satisfaction of the Loan Documents or any obligation of Developer to any other party whatsoever, including any holder of a mortgage or deed of trust. A Certificate of Completion is not "notice of completion" referred to in Section 3093 of the California Civil Code. 18. INDEMNIFICATION 18.1 Nonliability of City. Developer acknowledges and agrees that: (a) The relationship between Developer and the City is and shall remain solely that of Developer and lender, City neither undertakes nor assumes any responsibility to review, inspect, supervise, approve (other than for aesthetics) or inform Developer of any matter in connection with the construction, including matters relating to: (i) the performance of the construction work, (ii) architects, contractors, subcontractors and materialmen, or the worlamanship of or materials used by any of them, or (iii) the progress of the construction; and Developer shall rely entirely on its own judgment with respect to such matters and acknowledges that any review, inspection, supervision, approval or information supplied to Developer by City in connection with such matters is solely for the protection of City and that neither Developer nor any third party is entitled to rely on it; (b) Notwithstanding any other provision of any Loan Document: (i) the City is not a partner, joint venture, alter -ego, manager, controlling person or other business associate or participant of any kind of Developer and City does not intend to ever assume any such status; (ii) City's activities in connection with the Loan shall not be "outside the scope of the activities of a lender of money" within the meaning of California Civil Code Section 3434, as modified or recodified from time to time, and City does not intend to ever assume any responsibility to any person for the quality or safety of the Property; and (iii) City shall not be deemed responsible for or a participant in any acts, omissions or decisions of Developer; (c) City shall not be directly or indirectly liable or responsible for any loss or injury of any kind to any person or property resulting from any construction on, or occupancy or use of, the Property, whether arising from: (i) any defect in any building, grading, landscaping or other onsite or offsite improvement; (ii) any act or omission of Developer or any of Developer's agents, employees, independent contractors, licensees or invitees; or (iii) any accident on the Property or any fire or other casualty or hazard thereon; and (d) By accepting or approving anything required to be performed or given to City under the Loan Documents, including any certificate, financial statement, survey, appraisal or insurance policy, City shall not be deemed to have warranted or represented the sufficiency or legal effect of the same, and no such acceptance or approval shall constitute a warranty or representation by City to anyone. 18.2 Indemnity. Developer shall defend (by counsel satisfactory to City), indemnify and save and hold harmless the Indemnitees from and against all claims, damages, demands, actions, losses, liabilities, costs and expenses (including, without limitation, attorneys' fees and court costs) arising from or relating to (i) this Agreement; (ii) the making of the Loan(s); (iii) a claim, demand or cause of action that any person has or asserts against Developer; (iv) any act or omission of Developer, any contractor, subcontractor or material supplier, engineer, architect or other person with respect to the Property; or (vi) the ownership, occupancy or use of the Property. Notwithstanding the foregoing, Developer shall not be obligated to indemnify City with respect to the consequences of any act of gross negligence or willful misconduct of City. Developer's obligations under this Section shall survive the cancellation of the City Promissory Note, release and reconveyance of the City Deed of Trust, issuance of the Certificate of Completion, and termination of this Agreement. 18.2.1 Notwithstanding the foregoing, neither Developer, nor any of its partners, shall be personally liable for any indemnification obligation hereunder which would result in the repayment of principal and/or interest under the Loan. 18.3 Reimbursement of City. Developer shall reimburse City immediately upon written demand for all costs reasonably incurred by City (including the reasonable fees and expenses of attorneys, accountants, appraisers and other consultants, whether the same are independent contractors or employees of City) in connection with the enforcement of the Loan Documents and all related matters including all claims, demands, causes of action, liabilities, losses, commissions and other costs against which City is indemnified under the Loan Documents. Such reimbursement obligations shall bear interest from the date occurring twenty (20) days after City gives written demand to Developer and shall be secured by the City Deed of Trust. Such reimbursement obligations shall survive the cancellation of the Loan Note, release and reconveyance of the City Deed of Trust, issuance of a Certificate of Completion, and termination of this Agreement 19. INSURANCE, CASUALTY AND CONDEMNATION 19.1 Policies Required. While any obligation of Developer under the Loan Documents remains outstanding, Developer shall maintain at Developer's sole expense, with insurers either (i) admitted in California or (ii) are not admitted to California but have an A.M. Best Rating of "A" or above and reasonably approved by the City, the following policies of insurance in form and substance reasonably satisfactory to the City Attorney: (a) worker's compensation insurance and any other insurance required by law in connection with the construction; (b) prior to commencement and following completion of the construction, fire and hazard "all risk" insurance covering 100% of the replacement cost of the Improvements in the event of fire, lightning, windstorm, vandalism, malicious mischief and all other risks normally covered by "all risk" coverage policies in the area where the Property is located (including loss by flood if the Property is in an area designated as subject to the danger of flood); (c) upon commencement of the construction and at all times prior to completion of the construction, builder's risk -all risk insurance covering 100% of the replacement cost of all Improvements (including offsite materials) during the course of construction in the event of fire, lightning, windstorm, vandalism, earthquake, malicious mischief and all other risks normally covered by "all risk" coverage policies in the area where the Property is located (including loss by flood if the Property is in an area designated as subject to the danger of flood); (d) public liability insurance in amounts reasonably required by City from time to time, and in no event less than $1,000,000 for "single occurrence;" (e) property damage insurance in amounts reasonably required by the City from time to time, and in no event less than $1,000,000; and (1) any other insurance reasonably required by City. All such insurance shall provide that it may not be canceled or materially modified without thirty (30) days prior written notice to City. The policies required under subparagraphs (b) and (c) shall include a "lender's loss payable endorsement" in form and substance satisfactory to City, showing the City as encumbrance. The City shall be named as an additional insured in the policies required under subparagraphs (d) and (e). Certificates of insurance for the above policies (and/or original policies, if required by City) shall be primary and delivered within ten (10) days after demand therefore, and prior to start of any construction work. All policies insuring against damage to the Improvements shall contain an agreed value clause sufficient to eliminate any risk of co-insurance. No less than thirty (30) days prior to the expiration of each policy, Developer shall deliver to City evidence of renewal or replacement of such policy reasonably satisfactory to the City Attorney. 19.2 City Attorney May Modify. The City Attorney may modify the type and amounts of insurance required pursuant to this Section. Notwithstanding the foregoing, so long as the Property complies with the Senior Lender's insurance requirements, the City Attorney will not require additional insurance coverage unless (i) such additional insurance is required by applicable law or (ii) if not required by additional law, such additional insurance shall only be required if it is readily available on commercially reasonable terms and the cost thereof can be borne by the Borrower from available Borrower revenues without causing the Borrower to default under the Senior Loan or the Partnership Agreement. 19.3 Claims and Proceedings. Developer shall give City immediate notice of any material casualty to any portion of the Property, whether or not covered by insurance, and of the initiation or threatened initiation of any proceeding for the condemnation or other taking for public or quasi -public use of any portion of the Property (collectively, "Condemnation"), and shall provide City with copies of all documents which pertain to any such casualty or Condemnation. Subject to the rights of any Senior Lender, Developer shall take all action reasonably required by City in connection therewith to protect the interests of Developer and/or City, and City shall be entitled (without regard to the adequacy of its security) to participate in any action, claim, adjustment or proceeding and to be represented therein by counsel of its choice. Developer shall not settle, adjust, or compromise any claim, action, adjustment or proceeding without prior written approval of Senior Lender, if any, or if there is not a Senior Lender, the City, which approval shall not be unreasonably withheld or delayed. 19.4 Delivery of Proceeds to City. In the event that, notwithstanding the "lender's loss payable endorsement" requirement set forth above, the proceeds of any casualty insurance policy described herein are paid to Developer, Developer shall, subject to any superior rights of the Senior Lender, deliver such proceeds to the City immediately upon receipt. 19.5 Anulication of Casualty Insurance Proceeds. Any proceeds collected (the "Proceeds") under any casualty insurance policy described in this Agreement shall be disbursed to Developer as provided in the Senior Loan Documents, provided if there is no Senior Loan then as provided below, but only upon fulfillment of each of the following conditions (the "Restoration Conditions") within ninety (90) days (unless extended by mutual agreement of Developer and City) following the occurrence of the damage for which the Proceeds are collected: (a) Developer shall demonstrate to City's reasonable satisfaction that the Proceeds (together with amounts deposited by Developer pursuant to subparagraph (b)) will be adequate to repair the Improvements and to restore the fair market value of the ,Property, within a time period reasonably determined by City, to at least the value it had immediately prior to sustaining the damage. Such demonstration shall include delivery to City of (i) plans and specifications reasonably satisfactory to City, and (ii) a construction contract in form and content, and with a contractor, reasonably satisfactory to City. (b) To the extent that the Proceeds are insufficient to accomplish the restoration required above, Developer shall deliver to City funds (the "Shortfall Funds") in the amount of such shortfall, which funds shall be assigned to City as security for Developer's obligation hereunder and held and disbursed in the same manner as the Proceeds. (c) Developer shall execute such documents as City requires to evidence and secure Developer's obligation to use all amounts disbursed for the diligent restoration of the Property. (d) No Event of Default shall remain uncured. 19.6 Method of Disbursement and Undisbursed Funds. Any Proceeds and Shortfall Funds to be disbursed to Developer shall be held by City and disbursed in accordance with then customary disbursement procedures and related provisions of the Senior Loan, or the City, as applicable. Any amounts remaining undisbursed following completion of such restoration shall be returned to Developer up to the amount of any Shortfall Funds deposited by Developer, and any other amounts remaining shall either be paid to Developer or applied by Senior Lender if any or by City against any obligations to Senior Lender or City, as applicable, that are secured by a lien on the Property, as they elect in their sole and absolute discretion. 19.7 Failure to Satisfy Conditions. In the event that Developer fails to fulfill the Restoration Conditions within one hundred eighty (180) days (unless extended pursuant to Section 19.5) following the date on which the damage occurs, the Proceeds shall be applied by City against any obligations to City that are secured by a lien on the Property, and the selection of which such obligations to apply the Proceeds against shall be made by City in its sole and absolute discretion. 19.8 Restoration. Nothing in this Section 19 shall be construed to excuse Developer from repairing and restoring all damage to the Property in accordance with other Loan Document provisions, regardless of whether insurance proceeds are available or sufficient. 19.9 Condemnation; Treatment of Compensation. Subject to any superior rights of Senior Lender, Developer hereby assigns to the City, as security for all obligations to City secured by a lien on the Property, all amounts payable to Developer in connection with any Condemnation, and any proceeds of any related settlement (collectively, "Compensation"). Subject to any superior rights of Senior Lender, Developer shall deliver such remaining Compensation to City immediately upon receipt. If the taking results in a loss of the Property to an extent that, in the reasonable opinion of City, renders or is likely to render the Property not economically viable or if, in City's reasonable judgment Developer's security is otherwise impaired, City may apply the Compensation received due to judgment or settlement in connection with any condemnation or other taking to reduce the unpaid obligations secured in such order as City may determine, and without any adjustment in the amount or due dates of payments due under the Note. If so applied, any award in excess of the unpaid balance of the Note and other sums due to City shall be paid to Developer or Developer's assignee. City shall have no obligation to take any action in connection with any actual or threatened condemnation or other proceeding. 19.9.1 Notwithstanding the foregoing, as long as the value of City's liens are not impaired, any condemnation proceeds may be used by the Developer for repair and/or restoration of the Project. 19.9.2 Notwithstanding the foregoing, during the tax credit compliance period for the Project, as determined under Section 42 of the Internal Revenue Code, any condemnation proceeds may be used by the Developer for repair and/or restoration of the Project. 19.10 Waiver of Subrogation. Developer hereby waives all rights to recover against the City (or any officer, employee, agent or representative of City) for any loss incurred by Developer from any cause insured against or required by any Loan Document, to be insured against; provided, however, that this waiver of subrogation shall not be effective with respect to any insurance policy if the coverage thereunder would be materially reduced or impaired as a result. Developer shall use its best efforts to obtain only policies which permit the foregoing waiver of subrogation. 20. DEFAULTS AND REMEDIES 20.1 Events of Default. The occurrence of any of the following, whatever the reason therefore, shall constitute an Event of Default by Developer: (a) Developer fails to make any payment of principal or interest under the City Promissory Note when due, and such failure is not cured within fifteen (15) Business Days after Developer's receipt of written notice that such payment was not received when due; (b) Developer fails to perform any other obligation for the payment of money under any Loan Document, and such failure is not cured within fifteen (15) Business Days after Developer's receipt of written notice that such obligation was not performed when due; (c) Developer fails to perforin any obligation (other than the obligations described in subparagraphs (a) and (b) above) under any Loan Document, and such failure is not cured within thirty (30) days after ,Developer's receipt of written notice that such obligation was not performed; provided that, if cure cannot reasonably be effected within such thirty (30) -day period, such failure shall not be an Event of Default so long as Developer (in any event, within ten (10) days after receipt of such notice) commences to cure, and thereafter diligently (in any event within ninety (90) days after receipt of such notice) prosecutes such cure to completion; (d) Any representation or warranty in any Loan Document proves to have been incorrect in any material respect when made; (e) The Property is materially damaged or destroyed by fire or other casualty unless Developer fulfills the Restoration Conditions set forth in the insurance provisions of this Agreement within one hundred twenty (120) days (unless extended pursuant to Section 19.5) and thereafter diligently restores the Property in accordance with this Agreement; (f) Work on the construction ceases for thirty (30) consecutive days for any reason (other than governmental orders, decrees or regulations, acts of God or any other deity, strikes or other causes beyond Developer's reasonable control), provided that the same do not, in the aggregate and in the City's reasonable judgment, threaten to delay the completion of the construction beyond the required completion date set forth in this Agreement; (g) Developer is enjoined or otherwise prohibited by any Governmental Authority from constructing and/or occupying the improvements and such injunction or prohibition continues unstayed for sixty (60) days or more for any reason; (h) Developer is dissolved, liquidated or terminated, or all or substantially all of the assets of Developer are sold or otherwise transferred without the City Project Manager's prior written consent; (i) Developer is the subject of an order for relief by a bankruptcy court, or is unable or admits its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; or Developer applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or any part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of Developer and the appointment continues undischarged or unstayed for ninety (90) days; or Developer institutes or consents to any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution, custodianship, conservatorship, liquidation, construction or similar proceeding relating to it or any part of its property; or any similar proceeding is instituted without the consent of Developer and continues undismissed or unstayed for ninety (90) days; or any judgment, writ, warrant of attachment or execution, or similar process is issued or levied against any property of Developer and is not released, vacated or fully bonded within ninety (90) days after its issue or levy; or 0) (i) any of the Senior Loan documents is revoked or terminated, in whole or in part and for any reason (except due to repayment of such loans), without the City Project Manager's prior written consent, or (ii) an Event of Default occurs under the Senior Loan Documents and the Senior Lender declares that a default has occurred. In addition, if an Event of Default occurs hereunder, prior to taking any remedy under this Agreement or any other document evidencing or securing the Loan, City shall first give notice of the occurrence of such Event of Default to the Limited Partner and the Limited Partner shall have not less than 30 days to cure such Event of Default, provided if in order to cure such Event of Default the Limited Partner gives notice to the City that Limited Partner must remove and replace the general partner or general partners of Developer, Limited Partner shall have until 30 days following the effective date of such removal and replacement to cure such Event of Default. 20.2 Remedies Upon Default. Upon the occurrence of any Event of Default, City may, at its option and in its absolute discretion, do any or all of the following: (a) By written notice to Developer, declare the principal of all amounts owing under the Loan Documents, together with all accrued interest and other amounts owing in connection therewith, to be immediately due and payable, regardless of any other specified due date; provided that any Event of Default described in Section 20.1 (e) shall automatically, without notice or other action on City's part, cause all such amounts to be immediately due and payable; (b) In its own right or by a court-appointed receiver, take possession of the Property, enter into contracts for and otherwise proceed with the completion of the construction by expenditure of its own funds; (c) Exercise any of its rights under the Loan Documents and any rights provided by law, including, without limitation, the right to seek specific performance and the right to foreclose on any security and exercise any other rights with respect to any security, all in such order and manner as City elects in its sole and absolute discretion; and, (d) Suspend or terminate the award of Inclusionary Housing and CDBG funds if Developer fails to comply with any term of such award. 20.3 Cumulative Remedies: No Waiver. City's rights and remedies under the Loan Documents are cumulative and in addition to all rights and remedies provided by law. The exercise by City of any right or remedy shall not constitute a cure or waiver of any default, nor invalidate any notice of default or any act done pursuant to any such notice, nor prejudice the City in the exercise of any other right or remedy. No waiver of any default shall be implied from any omission by City to take action on account of such default if such default persists or is repeated. No waiver of any default shall affect any default other than the default expressly waived, and any such waiver shall be operative only for the time and to the extent stated. No waiver of any provision of any Loan Document shall be construed as a waiver of any subsequent breach of the same provision. City's consent to or approval of any act by Developer requiring further consent or approval shall not be deemed to waive or render unnecessary City's consent to or approval of any subsequent act. The City's acceptance of the late performance of any obligation shall not constitute a waiver by City of the right to require prompt performance of all further obligations; City's acceptance of any performance following the sending or filing of any notice of default shall not constitute a waiver of either party's right to proceed with the exercise of its remedies for any unfulfilled obligations; and City's acceptance of any partial performance shall not constitute a waiver by City of any rights. 21. MISCELLANEOUS 21.1 Obligations Unconditional and Independent. Notwithstanding the existence at any time of any obligation or liability of City to Developer, or any other claim by developer against City, in connection with the Loan or otherwise, Developer hereby waives any right it might otherwise have (a) to offset any such obligation, liability or claim against Developer's obligations under the Loan Documents, or (b) to claim that the existence of any such outstanding obligation, liability or claim excuses the nonperformance by Developer of any of its obligations under the Loan Documents. 21.2 Notices. All notices, demands, approvals and other communications provided for in the Loan Documents shall be in writing and be delivered to the appropriate party by personal service or U.S. Mail at its address as follows: If to Developer: Santa Ana Arts Collective, L.P. c/o Meta Housing Corporation 1640 Sepulveda Blvd, Ste. 425 Los Angeles, CA 90025 Attention: President With a copy: Bank of America CDC Special Holding Company, Inc. Community Development Banking MA1-225-02-02 225 Franklin Street Boston, MA 02110 With a copy to: Bank of America, N.A. MAI -225-02-02 225 Franklin Street Boston, MA 02110 Attention: Asset Management With a copy to: WCH Affordable XVIII, LLC Attn: Graham Espley-Jones 151 Kalmus Drive, 9J5 Costa Mesa, CA 92626 Fax: (714) 597-8320 If to City: City of Santa Ana Community Development Agency 20 Civic Center Plaza (M-26) P.O. Box 1988 Santa Ana, California 92702 Attention: Housing Manager With a copy to: Office of the City Attorney City of Santa Ana 20 Civic Center Plaza, 7th Floor (M-29) Santa Ana, California 92702 Addresses for notice may be changed as required by written notice to all other parties. All notices personally served shall be effective when actually received. All notices mailed shall be effective three (3) days after deposit in the U.S. Mail, postage prepaid. The foregoing notwithstanding, the non -receipt of any notice as the result of a change of address of which the sending party was not notified or as the result of a refusal to accept delivery shall be deemed receipt of such notice. 21.3 Survival of Representations and Warranties. All representations and warranties in the Loan Documents shall survive the making of the Loan(s) described herein and have been or will be relied on by City notwithstanding any investigation made by either party. 21.4 No Third Parties Benefited. This Agreement is made for the purpose of setting forth rights and obligations of Developer and the City, and no other person shall have any rights hereunder or by reason hereof. 21.5 Binding Effect; Assignment of Obligations. This Agreement shall bind, and shall inure to the benefit of, Developer and City and their respective successors and assigns. Other than as expressly provided to the contrary in this Agreement, Developer shall not assign any of its rights or obligations under any Loan Document without the prior written consent of City, which consent may be withheld in City's sole and absolute discretion. Any such assignment without such consent shall, at City's option, be void. 21.6 Prior Agreements; Amendments; Consents. This Agreement (together with the other Loan Documents) contains the entire agreement between the City and Developer with respect to the Loan and the Property, and all prior negotiations, understandings and agreements are superseded by this Agreement and such other Loan Documents. No modification of any Loan Document (including waivers of rights and conditions) shall be effective unless in writing and signed by the party against whom enforcement of such modification is sought, and then only in the specific instance and for the specific purpose given. 21.7 Governing Law. All of the Loan Documents shall be governed by, and construed and enforced in accordance with, the laws of the State of California and Federal law, whichever is more stringent. Developer irrevocably and unconditionally submits to the jurisdiction of the Superior Court of the State of California for the County of Orange or the United States District Court of the Central District of California, as City may deem appropriate, in connection with any legal action or proceeding arising out of or relating to this Agreement or the Loan Documents. Assuming proper service of process, Developer also waives any objection regarding personal or in rem jurisdiction or venue. 21.8 Severability of Provisions. No provision of any Loan Document that is held to be unenforceable or invalid shall affect the remaining provisions, and to this end all provisions of the Loan Documents are hereby declared to be severable. 21.9 Headings. Article and section headings are included in the Loan Documents for convenience of reference only and shall not be used in construing the Loan Documents. 21.10 Conflicts. In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, this Agreement, unless otherwise expressly provided, shall prevail; provided however that, with respect to any matter addressed in both such documents, the fact that one document provides for greater, lesser or different rights or obligations than the other shall not be deemed a conflict unless the applicable provisions are inconsistent and could not be simultaneously enforced or perfonned. 21.11 Time of the Essence. Time is of the essence under this Agreement and in the performance of every term, covenant, and obligation contained herein. 21.12 Conflict of Interest. No member, official or employee of the City shall have any direct or indirect interest in this Agreement, nor participate in any decision relating to the Agreement which is prohibited by law. 21.13 Warranty Aeainst Payment of Consideration. Developer warrants that it has not paid or given, and will not pay or give, any third person any money or other consideration for obtaining this Agreement. 21.14 Nonliability of Citv Officials and Employees. No member, official or employee of City shall be personally liable to Developer, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to Developer or successor, or on any obligation under the tenns of this Agreement. 21.15 Plans and Data. Where Developer does not proceed with the work and construction of the Project, and when this Agreement is terminated with respect thereto for any reason, Developer shall deliver to City any and all plans and data concerning the Property, and City or any person or entity designated by City shall have the right to use such plans and data without compensation to Developer. Such right of City shall be subject to any right of the preparer of the plans to their use. 21.16 Authority to Enter Agreement. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify the City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 21.17 Transfer of Developer Limited Partner's Interest. Notwithstanding anything to the contrary in this Agreement or the Loan Documents, no consent shall be required of the City (and it shall not be deemed a default or an Event of Default under any of the Loan Documents), in connection with the transfer and/or the assignment by the Developer's limited partner. 21.18 Removal of Developer's General Partner. Notwithstanding anything to the contrary in this Agreement or the Loan Documents, the removal and/or replacement of a General Partner for cause in accordance with the Partnership Agreement shall not require the consent of the City and shall not constitute a default or an Event of Default under this Agreement or the Loan Documents or accelerate the maturity of the City Loan. If the Developer's limited partner exercises its right to remove a General Partner, City will not unreasonably withhold its consent to the substitute general partner; provided however, the consent of either the City shall not be required if the substitute general partner is an affiliate of the Developer's limited partner. The substitute general partner shall assume all of the rights and obligations of the removed general partner hereunder. IN WITNESS WHEREOF, the parties hereto have caused this Loan Agreement to be executed on the date set forth at the beginning of this Agreement. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM Sonia R. Carvalho City �4omeN Attorney RECOMMENDED FOR Acting Executi e Dir ctof Community Development Agency aw (Signatures continue on following page) CITY OF SANTA ANA Cyyifhia J. Kurtzp In Brim City M ager 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 July 24, 2017 before me, Rosa A. Flores Notary Public (insert name and title of the officer) personally appeared Cynthia J. Kurtz who proved to me on the basis of satisfactory evidence to be the person4 whose names) is tare subscribed to the within instrument and acknowledged to me that he/she/they executed the same in iris/herkheir authorized capacity-(ies), and that by his/her/thein signature�,K on the instrument the persons}; 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. a hROssi# 2057 L J ES Commission on # 2057129 Notary Public - California i z Orange County > M Comm. Ex Ires Feb 7, 2018 Signature (Seal) DEVELOPER: Santa Ana Arts Collective, L.P., a California limited partnership By: Santa Ana Arts Collective, LLC, a California limited liability company, its administrative general partner By: a Kasey Burke, Vice resident By: a Cli Affordable XV L1�LC a California limited liabi � company, its managing general partne SIGNED Graham P. Espley-Jones, EXHIBITS A. Legal Description B. Affordability Restrictions on Transfer of Property C. Inclusionary Housing Deed of Trust D. Inclusionary Housing Promissory Note E. CDBG Deed of Trust F. CDBG Promissory Note G. Project Budget H. Scope of Work / Schedule ofPerfonnance I. Form of Residual Receipts Report 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 Los Angeles On July 13, 2017 before me, Rutzel M. Castillo, Notary Public (insert name and title of the officer) personally appeared Kasey Burke 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 (Seal) RUTZEL M. CASTILLO Commission 8 2100469 `z y: Notary Public - California z Los Angeles County Cahn. Ex Tres Mar 19.2019t DEVELOPER: Santa Ana Arts Collective, L.P., a California limited partnership By: Santa Ana Arts Collective, LLC, a California limited liability company, its administrative general partner SIGNED IN COUNTERPART Kasey Burke, Vice President By: WCH Affordable XVIII, LLC, a California limited liability company, its managing general partner By: � , Sandra Gibbons, Exefutive Vice President / CFO EXHIBITS A. Legal Description B. Affordability Restrictions on Transfer of Property C. Inclusionary Housing Deed of Trust D. Inclusionary Housing Promissory Note E. CDBG Deed of Trust F. CDBG Promissory Note G. Project Budget H. Scope of Work / Schedule of Performance I. Form of Residual Receipts Report CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity ofthe individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California 1 County of Orange J} On July 13, 2017 before me, Leanne Truofreh, Notary Public Date personally appeared Here Insert Name and Title of the Officer Sandra Gibbons Nome(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person($) whose name(4 is/&;& subscribed to the within instrument and acknowledged to me that he/she/they executed the same in Ytfs/her/tkrefr- authorized capacity(ies), and that by kris/her/t#eir signatureA on the instrument the person(4, or the entity upon behalf of which the person$) acted, executed the Instrument. Ploce Notary Seal and/or Stamp Above 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 OPTIONAL Signature Completing this information can deter alteration of the document or fraudulent reattachment of this form to on unintended document. Description of Attached Document Title or Type of Document: 1st Amended & Restated Loan Document S, 2017 Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian of Conservator ❑ Other: Signer is Representing: ©2017 National Notary Association Number of Pages: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner— ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian of Conservator ❑ Other: Signer is Representing: LEANNE TRUOFREHCommission # 2064657 a Notary PubliC • California D My Orange County Comm. Expires May 12, 2010 Ploce Notary Seal and/or Stamp Above 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 OPTIONAL Signature Completing this information can deter alteration of the document or fraudulent reattachment of this form to on unintended document. Description of Attached Document Title or Type of Document: 1st Amended & Restated Loan Document S, 2017 Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian of Conservator ❑ Other: Signer is Representing: ©2017 National Notary Association Number of Pages: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner— ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian of Conservator ❑ Other: Signer is Representing: Exhibit A: Legal Description EXHIBIT A PARCEL A: THAT PORTION OF SECTION 12, TOWNSHIP 5 SOUTH, RANGE 10 WEST, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, BEING A PORTION OF THE LAND ALLOCATED TO JACOB ROSS IN DECREE OF PARTITION OF THAT RANCHO SANTIAGO DE SANTA ANA, RECORDED IN BOOK "B" OF JUDGEMENTS OF 17TH JUDICIAL DISTRICT COURT OF CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID SECTION 12, BEING ALSO THE INTERSECTION OF THE CENTER LINES OF SEVENTEENTH STREET AND MAIN STREET AS SAID INTERSECTION IS SHOWN ON A MAP FILED IN BOOK 11 PAGE 18 OF RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY, CALIFORNIA; THENCE ALONG THE NORTHERLY LINE OF SAID NORTHEAST QUARTER, NORTH 89° 56' 40" WEST 289.89 FEET; THENCE SOUTH 00 16' 25" WEST 230.00 FEET; THENCE PARALLEL WITH THE NORTHERLY LINE OF SAID NORTHEAST QUARTER, SOUTH 89- 5640" 9°5640" EAST 289.78 FEET TO THE EASTERLY LINE OF SAID NORTHEAST QUARTER; THENCE ALONG SAID EASTERLY LINE NORTH 00 16'40" EAST 230.00 FEET TO THE POINT OF BEGINNING. EXCEPT THE NORTHERLY 40.00 FEET THEREOF. ALSO EXCEPT THE EASTERLY 35.00 FEET THEREOF. PARCEL B: NON-EXCLUSIVE EASEMENTS FOR VEHICLE INGRESS, EGRESS, PARKING AND INCIDENTAL PURPOSES, AS MORE PARTICULARLY SET FORTH IN THAT CERTAIN "DECLARATION OF EASEMENT FOR VEHICLE INGRESS, EGRESS AND PARKING" RECORDED OCTOBER 04, 2005 AS INSTRUMENT NO. 2005000786645 OF OFFICIAL RECORDS. APN: 005-153-19 (Affects a portion of said land) 005-153-20 (Affects a portion of said land) Exhibit Be. Affordability Restrictions on Transfer of Property FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana Clerk of the Council 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Attention: Clerk of the Council FIRST AMENDED AND RESTATED AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY (Address: 1666 N. Main Street, Santa Ana, CA) THESE AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY (the "Restrictions") are entered into by and between Santa Ana Arts Collective, LP, a California limited partnership ("Owner") and the City of Santa Ana, a charter city and municipal corporation (the "City"). RECITALS: A. The City is the recipient of Community Development Block Grant ("CD;BG") funds from HUD pursuant to Title I of the Housing and Community Development Act of 1974, as amended ("Act") and 24 CFR 570 ("CDBG Regulations") , Catalog of Federal Domestic Assistance (CFDA) Number 14.218, and Federal Award Identification Number (FAIN) B -15 - MC -06-0508 in the amount of $5,434,375. B. The City is authorized by the CDBG Regulations to expend funds to increase the supply of low- and moderate -income housing available at affordable housing costs. C. The Housing Opportunity Ordinance, Santa Ana Ordinance No. NS -2881, established standards and procedures to encourage the development of housing that is affordable to a range of households with varying income levels. Pursuant to Santa Ana Municipal Code ("SAMC") section 41-1904(c), developers may pay an in -lieu fee in certain instances to satisfy the inclusionary requirements. These funds are deposited into the Inclusionary Housing Fund, as defined by SAMC section 41-1901, and are to be used to increase and improve the supply of affordable housing per SAMC section 41-1909. D. In order to utilize money in the Inclusionary Housing Fund, the City issued a Request for Proposals on June 1, 2015, seeking affordable housing projects. After reviewing all applications, the Developer's project was selected and approved for funding by the Santa Ana City Council on November 3, 2015. E. Developer is entering into this agreement to acquire and, subject to entitlement approvals, develop an adaptive reuse project consisting of a fifty-eight (58) unit multi -family residential housing development, with live/work units and a possible commercial are studio, as well as a community room (the "Project") located at 1666 N. Main Street, within the City of Santa Ana, California, and legally described in Exhibit A attached hereto (the "Property"). The CDBG funds referenced herein shall assist in the rehabilitation only and the Inclusionary Housing funds will assist in the construction and soft costs of said Project. F. In furtherance of the Inclusionary Housing Program and CDBG guidelines, Developer has applied to the City for a loan with which to: 1. provide deeper affordability and construct the improvements to the Property, and 2. thereafter to maintain, operate and professionally manage the Project as decent, safe, sanitary and affordable rental housing. G. The City, on certain terms and conditions, desires to make such loan ("City Loan") to Developer in order to make possible the rehabilitation and construction of the Project, thereby expanding the supply of decent, safe, sanitary and affordable housing. H. If there is any inconsistency between Federal, State, and local guidelines with regard to any of the terms and conditions contained herein, the more stringent shall apply. I. Owner and the City are concurrently entering into that certain CDBG and Inclusionary Housing Loan Agreement. The Loan Agreement, CDBG Deed of Trust, CDBG Promissory Note, hiclusionary Deed of Trust, and Inclusionary Promissory Note, dated concurrently herewith (collectively the "Loan Agreements") are entered into for the purpose of providing for affordable very low income residential rental units in the City of Santa Ana pursuant to the CDBG and Inclusionary Funds regulations and guidance. NOW, THEREFORE, CITY AND OWNER COVENANT AND AGREE AS FOLLOWS: 1. Definitions "AHSC Loan" means a permanent loan of Affordable Housing and Sustainable Conrrnunities program funds from HCD administered by the California Strategic Growth Council in the amount of $4,944,130 "AHSC Deed of Trust" means any deed(s) of trust securing the AHSC Loan encumbering the Property. "AHSC Loan Documents" means, collectively, the loan agreement governing the AHSC, the AHSC Note, the AHSC Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the AHSC Loan. "Affordable Housing" means housing operated in accordance with the requirements of 24 CFR 570. "Affordable Rent" means the monthly rents which do not exceed the maximum amount applicable to Extremely Low, Very Low and Low Income households, as promulgated by the U.S. Department of Housing and Urban Development (HUD), or by the California Tax Credit Allocation Committee, as applicable. "Agreement" means this Affordability Restrictions on Transfer of Property between the City and the Owner affecting real property. "AHSC Loan" means a permanent loan of Affordable Housing and Sustainable Communities program funds from HCD, awarded to and the sole responsibility of Borrower, administered by the California Strategic Growth Council in the amount of $4,944,130 "AHSC Deed of Trust" means the any deed(s) of trust securing the AHSC Loan encumbering the Property. "AHSC Documents" means, collectively, the loan agreement governing the AHSC, the AHSC Note, the AHSC Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the AHSC Loan. "Applicable Law" shall mean those federal, state and local laws, ordinances, regulations, policies and procedures applicable to the CDBG Funds and Inclusionary Funds. "Building Permit" means the building permit(s) issued by City and required for the construction, if any. "Business Day" means any Monday, Tuesday, Wednesday, Thursday or Friday on which Santa Ana City Hall is open to the public for the conduct of City affairs. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 31. "Certificate of Completion" has the meaning set forth in Article 17. "City" means the City of Santa Ana, California, a charter city and municipal corporation. "CDBG Deed of Trust" means the deed of trust encumbering the Property, in the form attached as Exhibit E to the Loan Agreement, to be executed by Owner pursuant to Section 5.13.2 in order to secure the CDBG Loan Note. "CDBG Loan" means the CDBG funds that will be awarded to the Owner in the principal amount of Five Hundred Thousand Dollars ($500,000.00) in accordance with the Loan Agreement. "CDBG Promissory Note" means that certain Promissory Note in the original principal amount of $500,000 in the form attached as Exhibit F to the Loan Agreement, and to be executed by Owner in favor of City to evidence the obligation of Owner to repay the CDBG Loan through residual receipts as further described in the CDBG Promissory Note. "Close of Escrow" shall mean the date upon which the Loan Agreement and City Deed of Trust are recorded in the Official Records of the County. "Closing Statement" means the final statement of Owner's Escrow account for the purchase of the Property pursuant to the purchase contract. "County" means the County of Orange, California. "Owner" means Santa Ana Arts Collective, LP, a California limited partnership. "Owner's Representative" shall mean the officer of the General Partner of Owner or his/her designee. "Extremely Low Income" means an adjusted income which does not exceed thirty percent (30%) of the area median income for the Orange County, California PMSG, adjusted for household size, as published by HUD. "Event of Default" has the meaning set forth in Section 20.1. "General Partner(s)" means the Santa Ana Arts Collective, LLC, a California limited liability company and WCH Affordable XVIII, LLC, a California limited liability company. "Governmental Authority" means any governmental or quasi governmental agency, board, bureau, commission, department, court, administrative tribunal or other instrumentality or authority, and any public utility. "Hazardous Materials" means flammable materials, explosives, radioactive materials, hazardous wastes, toxic substances and similar substances and materials, including all substances and materials defined as hazardous or toxic wastes, substances or materials under any applicable law, including without limitation the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et s�Mc., and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq., as amended. "HUD" means the United States Department of Housing and Urban Development and any successors or assigns thereof. "Improvements" means all improvements and fixtures now and hereafter comprising any portion of the Property, including, without limitation, landscaping, trees and plant materials; and offsite improvements, as required through the City of Santa Ana Planning and Building Agency entitlement process. "Inclusionary Deed of Trust" means the deed of trust encumbering the Property, in the form attached as Exhibit C to the Loan Agreement, to be executed by Owner pursuant to Section 53.2 in order to secure the Inclusionary Loan Note. "Inclusionary Loan" means the Inclusionary Funds that will be awarded to the Owner under the Loan Agreement that must be repaid through residual receipts. "Inclusionary Promissory Note" means that certain Promissory Note for Inclusionary Funds in the original principal amount of $4,775,000.00 in the form attached as Exhibit D to the Loan Agreement, and to be executed by Owner in favor of City to evidence the obligation of Owner to repay the Inclusionary Loan through residual receipts as further described in the Inclusionary Promissory Note. "Indebtedness" of a person means (a) all indebtedness for borrowed money, (b) notes payable and drafts accepted representing extensions of credit, whether or not representing obligations for borrowed money, (c) any obligation for the purchase of property or services in excess of $10,000 in the aggregate that is (i) deferred for more than six (6) months, or (ii) evidenced by a note or similar instrument, and (d) all recourse and all non- recourse indebtedness secured by any Lien on any property or asset of such person (whether or not assumed by such person). "Indemnitees" has the meaning set forth in Section 14.5. "Laws" means all statutes, laws, ordinances, regulations, orders, writs, judgments, injunctions, decrees or awards of the United States or any state, county, municipality or other Governmental Authority. "Lien" means any lien, mortgage, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any lien or security interest). "Loan Agreement" means the Loan Agreement regarding the loan of CDBG and Inclusionary funds between the City and the Owner, and any attachments thereto. "Loan Documents" means, collectively, the Loan Agreement, the CDBG Promissory Note, the CDBG Deed of Trust, Inclusionary Promissory Note, Inclusionary Deed of Trust and this Agreement, and any other agreement, document, or instrument that the City requires in connection with the execution of this Agreement or from time to time to effectuate the purposes of this Agreement. "Low Income" means an adjusted income which does not exceed eighty percent (80%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "Median Income for the Area" means the median income for the Orange County, California PMSA as most recently determined by HUD. Also may be referred to interchangeably in the Loan Documents as "Area Median Income" or "AMP'. "Partnership Agreement" means the Second Amended and Restated Agreement of Limited Partnership of Santa Ana Arts Collective, LP, dated in July 2017. "Permitted Encumbrances for the Affordable Housing Restrictions" means collectively, the Senior Loan Deed of Trust and AHSC Loan Documents and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing. "Permitted Encumbrances for the City Deed of Trust" means, collectively, the Senior Loan Deed of Trust and AHSC Loan Documents and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing. "Project" means the construction of the Improvements upon the Property by Owner pursuant to this Agreement. "Project Budget" means the line -item budget for the Project attached as Exhibit G to the Loan Agreement, as modified from time to time in accordance with the Loan Agreement. "Project Costs" means all costs of any nature incurred in connection with the Project in accordance with generally accepted accounting principles. "Property" means the property that is located at 1666 N. Main Street in the City of Santa Ana, and is more fully described in the "Legal Description" of the Property attached hereto as Exhibit A and incorporated herein by reference. "Restricted Units" means the units restricted as affordable by the City Documents. "Scope of Work/Schedule of Performance" means the detailed statement of the work to be performed by Owner on and to the Property pursuant to this Agreement, along with the Schedule of Performance setting forth timeframes for certain tasks, which document is attached as Exhibit H to the Loan Agreement. "Senior Lender" means a commercial financial institution providing the Senior Loan or any other holder of the Senior Loan Note and its successors and assigns. The initial Senior Lender will be Bank of America, N.A and California Community Reinvestment Corporation is projected to become the Senior Lender after conversion of the loan to permanent status. "Senior Loan" means a loan from any Senior Lender(s) in a position superior to the City Loan. "Senior Loan Deed of Trust" means any deed(s) of trust securing any Senior Loan by encumbering the Property. "Senior Loan Documents" means, collectively, the loan agreement governing the Senior Loan, the Senior Loan Note, the Senior Loan Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the Senior Loan. "Senior Loan Note" means the promissory note evidencing the Senior Loan from the Senior Lender. "Term of Affordability" the terms and conditions contained herein shall remain in effect for fifty-five (55) years from the date of issuance of the Certificate of Completion. "Very Low Income" means an adjusted income which does not exceed fifty percent (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. 2. Use of the Property. Owner covenants and agrees (for itself, its successors, its assigns, and every successor in interest to the Property of any part thereof) that Owner, such successors, and assigns shall use the Property to provide affordable rental housing, for Extremely Low and Very Low Income households, as provided in the Loan Agreement and these Restrictions. 3. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE PROPERTY 3.1 Use Covenants and Restrictions. a. Owner agrees and covenants, which covenants shall run with the land and bind Owner, its successors, its assign and every successor in interest to the Property that Owner will make all rental units on the Property available to extremely -low, very low and low income households at rents affordable to such households for fifty-five (55) years from the effective date of the issuance of the Certificate of Completion. b. The Project shall consist of approximately fifty-eight (58) units of which there will be twenty-six (26) one -bedroom units, fifteen (15) two-bedroom units and seventeen (17) three-bedroom units. There will be twenty (20) units with incomes at or below 30% AMI, six (6) units for households with incomes at or below 35% AMI; six (6) units for households with incomes at or below 40% AMI; twenty-five (25) units for households with incomes at or below 60% AMI; and the retraining unit will be reserved for the on-site manager. C. The proposed unit mix, initial rents, and levels of affordability are as follows: 30% AMI 35% AMI 40% AMI 60% AMI Unit Size No. Rent Units No' Rent Units No. Rent Units No. Units Rent Total 1 Bedroom 14 $587 6 $685 6 $783 26 2 Bedroom 2 $704 --- --- --- --- 12 $1,408 14 3 Bedroom 4 $813 --- --- --- --- 13 $1,627 17 Total 20 6 6 25 57 The remaining unit will be a 2 -bedroom unit reserved for the onsite manager. HOME Assisted Units (1) In no event shall the rent charged to the HOME assisted units be more than that amount of the low HOME rent as published by HUD, as amended from time to time. (2) At the time of project completion, the Developer shall provide to the City the address and/or unit number of each of the HOME floating units. (3) Annually with the financial statements, the Developer shall provide an annual report of rents and occupancy of all assisted units, including the HOME -assisted units, to verify compliance with affordability requirements. For the HOME assisted -units, information on unit substitution and filling vacancies shall be provided to ensure that the project maintains the required unit mix. The affordable rents charged at the Project must comply with the standards set forth by California Tax Credit Allocation Committee (TCAC). Notwithstanding anything to the contrary contained in this Agreement, the Affordability Restrictions on Transfer of Property, and other than HOME assisted units, restricted (as to both income and rent levels) at 30% of AMI, in the event of a foreclosure, or delivery of deed in lieu of foreclosure, of any Senior Loan, then the (1) the maximum qualifying tenant household income shall be increased to 60% of Area Median Income adjusted for family size appropriate to the unit, and (2) the maximum annual affordable rent shall be increased to 30% of 60% of Area Median Income, as adjusted for family size appropriate to the unit. * Utility allowances must be deducted from the Maximum Gross Monthly Rent. The City of Santa Ana will provide the utility allowances based on the HUD Utility Schedule Model. d. Initial rents may be recalculated to allowable rental amounts at the time of initial lease -up following completion of construction in accordance with any changes in allowable rent and income tables as published by HUD. 3.2 Rent Increases: A. On an annual basis, the City shall provide the Owner with the HUD maximum allowable schedule of incomes and rents (less utility allowance appropriate for the Restricted Units) for the Property. B. Owner, its successors and assigns shall not charge rents for the Restricted Units in excess of the amounts set forth in the tables as adjusted from time -to -time by HUD. The Housing Unit Type Total # of Units Description/ No. of BRs Level of # of HOME HOME Share of Affordability Assisted Units Unit Type Notes 26 1 Bed 1 30%AMI 5 19.23% 14 2Bed 2 2 14.29% 17 3 Bed 3 4 23.53% (1) In no event shall the rent charged to the HOME assisted units be more than that amount of the low HOME rent as published by HUD, as amended from time to time. (2) At the time of project completion, the Developer shall provide to the City the address and/or unit number of each of the HOME floating units. (3) Annually with the financial statements, the Developer shall provide an annual report of rents and occupancy of all assisted units, including the HOME -assisted units, to verify compliance with affordability requirements. For the HOME assisted -units, information on unit substitution and filling vacancies shall be provided to ensure that the project maintains the required unit mix. The affordable rents charged at the Project must comply with the standards set forth by California Tax Credit Allocation Committee (TCAC). Notwithstanding anything to the contrary contained in this Agreement, the Affordability Restrictions on Transfer of Property, and other than HOME assisted units, restricted (as to both income and rent levels) at 30% of AMI, in the event of a foreclosure, or delivery of deed in lieu of foreclosure, of any Senior Loan, then the (1) the maximum qualifying tenant household income shall be increased to 60% of Area Median Income adjusted for family size appropriate to the unit, and (2) the maximum annual affordable rent shall be increased to 30% of 60% of Area Median Income, as adjusted for family size appropriate to the unit. * Utility allowances must be deducted from the Maximum Gross Monthly Rent. The City of Santa Ana will provide the utility allowances based on the HUD Utility Schedule Model. d. Initial rents may be recalculated to allowable rental amounts at the time of initial lease -up following completion of construction in accordance with any changes in allowable rent and income tables as published by HUD. 3.2 Rent Increases: A. On an annual basis, the City shall provide the Owner with the HUD maximum allowable schedule of incomes and rents (less utility allowance appropriate for the Restricted Units) for the Property. B. Owner, its successors and assigns shall not charge rents for the Restricted Units in excess of the amounts set forth in the tables as adjusted from time -to -time by HUD. The Housing Manager shall notify Owner in writing of the adjusted allowable maximum incomes and rents. 4. Miscellaneous Provisions: A. Owner shall adopt and include as part of its Management Plan (described in subsection G below), written tenant selection policies and criteria for the Units, that meet the following requirements: (a) Are consistent with the purpose of providing housing for Extremely Low and Very Low Income households; (b) Are reasonably related to program eligibility and the applicants' ability to perform the obligations of the lease; (c) Give reasonable consideration to the housing needs of households that would have a preference under 42 CFR §906.211 (Federal selection preferences for admission to Public Housing); (d) Provide for: (i) The selection of tenants from a written waiting list in the chronological order of their application, insofar as is practicable; and (ii) The prompt written notification to any rejected applicant of the grounds for any rejection; (e) Provide first priority in the selection of qualified eligible tenants to households that are referred by the City; and (f) Carry out the Affirmative Marketing procedures of the City of Santa Ana, which are designed to provide information and otherwise attract eligible persons from all racial, ethnic and gender groups in the housing market area to the units. Owner, the City shall cooperate to effectuate this provision prior to the initial renting, or upon occurrence of a vacancy, and the re -renting of any Restricted Units (24 CFR 92.351). B. Owner, its successors and assigns, shall not refuse to lease a unit to a holder of a rental voucher under 24 CFR part 982 (Housing Choice Voucher Program) or to a holder of a comparable document evidencing participation in a HOME tenant -based rental assistance program because of the status of the prospective tenant as a holder of such certificate of family participation, rental voucher, or comparable HOME tenant -based assistance document. C. Any lease of any of the Units must be for not less than one year, unless by mutual agreement between the tenant and the Owner. Should the tenant and Owner agree to a term of less than one year, said agreement shall be expressed in some type of written form, signed by the tenant, and maintained in the tenant's rental file held by the Owner. The lease may not contain any of the following provisions (in which references to "Owner" shall mean the Owner, its successors or assigns): (a) Agreement by the tenant to be sued, to admit guilt, or to a judgment in. favor of the owner in a lawsuit brought in connection with the lease; (b) Agreement by the tenant that the owner may take, hold, or sell personal property of household members without notice to the tenant and a court decision on the rights of the parties. This prohibition, however, does not apply to an agreement by the tenant concerning disposition of personal property remaining in the housing Unit after the tenant has moved out of the Unit. The owner may dispose of this personal property in accordance with state law; (c) Agreement by the tenant not to hold the owner or the owner's agent legally responsible for any action or failure to act, whether intentional or negligent; (d) Agreement of the tenant that the owner may institute a lawsuit without notice to the tenant; (e) Agreement by the tenant that the owner may evict the tenant or household members without instituting a civil court proceeding in which the tenant has the opportunity to present a defense, or before a court decision on the rights of the parties; (f) Agreement by the tenant to waive any right to a trial by jury; (g) Agreement by the tenant to waive the tenant's right to appeal, or to otherwise challenge in court, a court decision in connection with the lease; and (h) Agreement by the tenant to pay attorney's fees or other legal costs even if the tenant wins in a court proceeding by the owner against the tenant. The tenant, however, may be obligated to pay costs if the tenant loses. D. Owner, its successors or assigns, must adhere to state law requirements with regard to termination of tenancy. F. Owner shall maintain the improvements on the Property in compliance with all applicable housing quality standards [24CFR 92.504 (c)(6)] and state and local code requirements and shall keep the Property free from any unreasonable accumulation of debris or waste materials. Owner shall also maintain in a healthy condition any landscaping planted, on the Property. F. Owner covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof, there shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, religion, disability, sex, marital status, national origin or ancestry in the sale, lease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall the Owner itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property, as required by the Title VI of the Civil Rights Act of 1964, the Fair Housing Act (42 U.S.C. 3601-20) and all implementing regulations, and the Age Discrimination Act of 1975, and all implementing regulations. G. Not later than the closing for the construction loan for the Project, Owner shall submit to the 0 Housing Manager a Management Plan in a form that is acceptable including, but not limited to, the components listed below. Approval of the Management Plan must be obtained from the Housing Manager not later than the time for the issuance of a certificate of occupancy for the Project. Owner shall manage the Restricted Units in accordance with the approved Management Plan, including such amendments as may be approved in writing from time to time by the Housing Manager, for the term of the income and rent restrictions contained in these Restrictions. The components of the Management Plan shall include: (a) Management Agent. Owner shall submit the name and qualifications of the proposed Management Agent, The City shall approve or disapprove the proposed Management Agent in writing based on the experience and qualifications of the Management Agent. (b) Management Agreement. Owner shall submit a copy of the proposed management agreement specifying the amount of the management fee, and the relationship and division of responsibilities between Owner and Management Agent. (c) Annual Budget and Projected Cash Flows. Prior to the issuance of a certificate of occupancy for the Project, and annually thereafter not later than one hundred fifty (150) days after the close of each calendar year thereafter, Owner shall submit a projected operating budget and cash flow to the Housing Manager. The budget and cash flow shall be in a form that is acceptable to the Housing Manager. (d) Tenant Selection Policies. Owner shall include in the Management Plan the tenant selection policies in accordance with Section 4, above. H. If at any time the City determines that the units are not being managed or maintained in accordance with the approved Management Plan, Owner shall change the management agent or the practices complained of, upon receipt of written notice from the City Manager, The City Manager may require Owner to change management practices or to terminate the management contract and designate and retain a different management agent. The management agreement shall provide that it is subject to termination by Owner without penalty, upon thirty (30) days prior written notice, at the direction of the City Manager. Within ten (10) days following a direction of the City Manager to replace the management agent, the Owner shall select another management agent or make other arrangements satisfactory to the City Manager or designee for continuing management of the units. L The covenants established in these Restrictions and any amendments hereto approved by the City, and Owner shall, without regard to technical classification and designation, be binding for the benefit and in favor of the City and their respective successors and assigns. These Restrictions shall remain in effect for fifty-five (55) years. In its discretion, the City may defer repayment of the Loan or the City may agree to such reasonable modifications to the requirements of these Restrictions, as they may determine are necessary for the continued maintenance and operation of the Restricted Units. The covenants against discrimination shall remain in effect for the period of'these Restrictions. 7. Owner shall not request disbursement of City funds until the 1"unds are needed to pay eligible costs. The City shall have the right to disapprove any request if the City determines the request is for an ineligible item or is otherwise not in compliance with or inconsistent with the Loan Agreements and these Restrictions [24 CFR 92.504 (c)(10)]. K. Owner shall prepare, maintain and submit to the City, as appropriate, the following records and reports in compliance with 24 CFR 92.504 (c) (12): a. Annual Reports. Owner shall file with the City an Annual Report (herein referred to as the "Annual Report") within one hundred fifty (150) days following the end of each calendar year, commencing the Calendar Year following the issuance of the Certificate of Completion. The Annual Report shall contain a certification by Owner as to such information as the City Project Manager may then require, including, but not limited to, the following: (1) The fiscal condition of the Project, including the Annual Budget and Project Cash Flow report required by Section 4.G. (c) of the this Agreement which shall include an audited financial statement for the previous calendar year that includes a balance sheet and a profit and loss statement indicating any surplus or deficit in operating accounts; a detailed itemized listing of income and expenses; and the amounts of any fiscal reserves. Such Annual Budget and audited financial statement shall be prepared in accordance with generally accepted accounting practices. (2) Any substantial physical defects in the Project, including a description of any major repair or maintenance work undertaken or needed in the previous and current years. Such statement shall describe what steps Owner has taken in order to maintain the Project in a safe and sanitary condition in accordance with applicable housing and building codes and the property standards set forth in 24 CFR 92.251. (3) The occupancy of the units indicating the income of each current resident and the current rents charged each resident and whether those rents include utilities, including records that demonstrate that the Project meets the requirements of the CDBG and Inclusionary Housing Program. (4) General management performance, including tenant relations and other relevant information. (5) Records that demonstrate that the units meet the affordability requirements of 24 CFR 92.252, for the required period of affordability. (6) Evidence of a currently paid hazard insurance policy in accordance with the requirements of Section 6 of the CDBG Deed of Trust and Inclusionary Deed of Trust, with a loss payable endorsement naming the City as a loss payee together with other approved lenders (as their interests may appear), with a "Replacement Cost Endorsement" in amount sufficient to prevent Owner or City from becoming a co-insurer under the terms of the policy, but in any event in an amount not less than 100% of the then full replacement cost, to be determined at least once annually and subject to reasonable approval by the Executive Director. (7) Evidence of a currently paid liability insurance policy, naming the City as additional insured and in a form approved by the City Attorney with coverage as described in the Loan Agreements. (8) Termite reports pertaining to the Property every fifth (5th) year. (9) Such other information as may be reasonably required by the City Manager or his/her designee. b. Records and Audits. Owner shall maintain the following general program records, and make them available for inspection by the City, the State or HUD: (1) records which demonstrate that the project meets the property standard specified in 24 CFR 92.251; (2) records, for each Restricted Unit, which demonstrates that the project meets the requirements of 24 CFR 92.252. (3) records which demonstrate compliance with the tenant and participant protections, as specified in 24 Section 29.253; (4) records which demonstrate compliance with the Equal Opportunity and Fair Housing requirements outlined in these Restrictions, including: (A) data on the extent to which each racial and ethnic group and single head of household (by gender of head of household) have applied for, participated in, or benefited from, any program or activity funded in whole or in part with NSP funds; (B) documentation of actions undertaken to meet the equal opportunity requirements of 24 CFR 92.350, which implements Section 3 of the Housing Development Act of 1968, as amended (12 U.S.C. 1701u); (C) documentation and data on the steps taken to implement Owner's outreach programs to minority-owned and women -owned businesses to meet the minority outreach requirements of 24 CFR 92.350; (5) documentation of the steps taken to carry out an affirmative marketing program in accordance with 24 CFR 92.351, if applicable; (6) if applicable, records which demonstrate compliance with the requirements relating to relocation of displaced persons, as described in 24 CFR 92.353. At a minimum, these shall include project occupancy lists identifying the name and address of all persons occupying the project property up until the date of the date on which Owner obtained ownership of the Property; (7) records concerning lead-based paint in accordance with 24 CFR 92.355; (8) if applicable, records which support any requests for waivers of the conflict of interest prohibition as stated in 24 CFR 92.356; (9) records of certifications of contractor qualifications as they relate to the debarment and suspension requirement as stated in 24 CFR 92.357 and 24 CFR Part 24; and (10) any other reports issued by other monitoring agencies. c. All records pertaining to each calendar year of NSP funds must be retained for the most recent five year period, except that for rental housing projects, records may be retained for five years after the project completion date; except that records of individual tenant income verifications, project rents and project inspections must be retained for the most recent five year period, until five years after the affordability period terminates (24 CFR 92.508). Owner shall cooperate with the City to retain all books and records relevant to the Loan Agreement for a minimum of five years after the expiration of the Loan Agreement and any and all amendments hereto, or for five years after the conclusion or resolution of any and all audits or litigation relevant to the Loan Agreement, whichever is later. The City, the State, the Office of the Auditor General of HUD, and/or their representatives shall have unrestricted reasonable access to all locations, books, and records for the purpose of monitoring, auditing, or otherwise examining said locations, books, and records with or without prior notice. d. If so directed by the City or HUD upon termination of the Loan Agreement, Owner shall cause all records, accounts, documentation and all other materials relevant to the work to be delivered to the City or HUD, as depository. e. All records, accounts, documentation and other materials relevant to the Project shall be accessible at any time to the authorized representatives of the City, or HUD, on reasonable prior notice, for the propose of examination or audit. f Pursuant to 24 CFR Part 44, the City shall perform an annual audit at the close of each calendar year in which these Restrictions are in effect. Owner shall reasonably cooperate with City in performing such audit. g. Owner shall permit the City to perform an Annual, Physical Inspection of the Property with at least seven (7) days notice. Owner shall cooperate with this Inspection and shall take all steps necessary to quickly correct any code deficiencies identified during the Inspection. L. The City is the beneficiary of the terms and provisions of these Restrictions and the covenants herein, both for and in its own right and for the purposes of protecting the interests of the community and other parties, public or private, for whose benefit these Restrictions and the covenants running with the land have been provided. The City shall have the right if the covenants are breached, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which they or any other beneficiaries of these Restrictions and covenants are entitled. M. The covenants and agreements contained herein shall rim with the land and not be personal obligations of Owner. Upon the sale, conveyance or other transfer of the Property (a "Transfer") and the assumption of the obligations hereunder by a transferee, Owner's liability for performance shall be terminated, as to any obligation to be performed hereunder after the date of such Transfer. N. The Loan Agreement and all of its attachments shall be enforceable by the City in accordance with the terms thereof. Each of the Loan Agreement, the Affordability Restrictions on Transfer of Property, the City Note and the City Deed of Trust provide a means of enforcement by the City if Owner is in breach of its obligations hereunder and thereunder, including liens on the Property, deed restrictions and covenants running with the land [24 CFR 92.504 (c) (13)]. IN WITNESS WHEREOF, the parties hereto have executed these Affordability Restrictions on Transfer of Property as of the date and year first stated above. ATTEST: 'D. Maria D. Huizar Clerk of the Council APPROVED AS TO FORM Sonia R. Carvalho RECOMMENDED FOR APPROVAL: fokrt C. Corte Acting Executive Director Community Development Agency CITY OF SANTA ANA Cynthia J. Kurtz Interim City Manager 0 Santa Ana Arts Collective, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, A California limited liability company, its administrative general partner By: Kasey Burke, Vic ident By: WCH Affordable XVHI, LLC, a California limited liability company its managing general partner By: Graham P. Espley-Jones, President 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 Los Angeles On July 13, 2017 before me, Rutzel M. Castillo, Notary Public (insert name and title of the officer) personally appeared Kasey Burke 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. RUTZIL M. CASTILLO WITNESS my hand and official seal. Commission # 2100499 Notary Public - California Los Angeles County Comm. Ex irea Mar t9 2019 Signature. h� / (Seal) Santa Ana Arts Collective, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, A California limited liability company, its administrative general partner By: Kasey Burke, Vice President By: WCH Affordable XVIII, LLC, a California limited liability company its managing/general partner By: / Sandra Gibbons, Exe utive Vice President / CFO CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 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 1 County of Orange J} On July 13, 2017 Date personally appeared . before me, Leanne Truofreh, Notary Public Here Insert Name and Title of the Officer Sandra Gibbons Nome(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person($) whose name(§6 is/awe subscribed to the within instrument and acknowledged to me that he/she/they executed the same in Tris/her/their authorized capacity(4ea), and that by his/her/their signature(sr) on the instrument the person(o), or the entity upon behalf of which the person(X) acted, executed the Instrument. LEANNE TRUOFREH Commission # 2064657 Z `� :F,r, Notary Public - California zz Orange County My Comm. Expires May 12, 2018 Place Notary Seal and/or Stamp Above 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 Signature of kotaryPub Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: 1st Amended & Restated Affordability Restrictions Document Date: July 5, 2017 Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian of Conservator ❑ Other: Signer is Representing: 02017 National Notary Association Number of Pages: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner— ❑ Limited ❑ General ❑ Individual ❑ Trustee ❑ Other: Signer is Representing: ❑ Attorney in Fact ❑ Guardian of Conservator Exhibit Co. Inclusionary Housing FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana Clerk of the Council 20 Civic Center Plaza P.O. Box 1988 (M-30) Santa Ana, California 92702 Attn: Cleric of the Council FIRST AMENDED AND RESTATED INCLUSIONARY DEED OF TRUST AND ASSIGNMENT OF RENTS THIS FIRST AMENDED AND RESTATED INCLUSIONARY DEED OF TRUST AND ASSIGNMENT OF RENTS (the "Deed of Trust") made this 5a` day of July, 2017, by between Santa Ana Arts Collective, LP , a California limited partnership (the "Trustor"), AmeriNat, a Minnesota corporation (the "Trustee"), and the City of Santa Ana, a charter city and municipal corporation (the "Beneficiary"). Trustor, in consideration of the promises herein recited and the trust herein created, irrevocably grants, transfers, conveys and assigns to Trustee, in trust, with power of sale, the property located in the City of Santa Ana, County of Orange, State of California, described in the attached Exhibit A and more commonly known as 1666 N. Main Street, Santa Ana, California (the "Property"); TOGETHER with all the improvements now or hereafter erected on the Property, and all easements, rights, appurtenances and all fixtures now or hereafter attached to the Property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the Property covered by this Inclusionary Deed of Trust; provided that so long as Trustor is not in default hereunder, it shall be permitted to control the Property in accordance with the requirements of that certain CDBG and Inclusionary Program Loan Agreement entered into between the Trustor and the Beneficiary, dated concurrently herewith, which Agreements are both on file with the Beneficiary as a public record; TOGETHER with the right, power and authority during the continuance of these Trusts, to collect the rents, issues, and profits of the Property, reserving unto the Trustor the right, prior to any default by Trustor in payment of the indebtedness secured by this Deed of Trust or in the performance of any agreement under this Deed of Trust, to collect and retain these rents, issues and profits as they become due and payable; and, TOGETHER with all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected, or hereafter to be erected, on the Property which are necessary to the complete and comfortable use and occupancy of such building or buildings for the purposes for which they were or are to be erected, including all other goods and chattels and personal property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the one herein described and referred to, and all renewals or replacements thereof or articles in substitution therefor, whether or not the same are, or shall be attached to said building or buildings in any manner; and all of the foregoing, together with the Property, is herein referred to as the "Security'; To have and to hold the Security together with acquittances to the Trustee, its successors and assigns forever; TO SECURE to the Beneficiary (a) the repayment of the sums evidenced by a Promissory Note to the Beneficiary executed by Trustor of even date herewith in the principal amount of FOUR MILLION SEVEN HUNDRED AND SEVENTY FIVE THOUSAND DOLLARS ($4,775,000.00) (the "Inclusionary Promissory Note"); (b) the performance of the covenants and agreements of Borrower contained in a certain Agreement as hereinafter defined; and (c) the payment of all other sums, with interest thereon, advanced in accordance herewith to protect the security of this Deed of Trust; and the performance of the covenants and agreements of Trustor contained herein. TRUSTOR AND THE BENEFICIARY COVENANT AND AGREE AS FOLLOWS: 1. The Agreement. This Deed of Trust is executed and delivered, along with the Inclusionary Promissory Note and the Loan Agreement, to benefit the Property. A copy of said Loan Agreement is on file as a public record with the Beneficiary and is incorporated herein by reference (the "Agreement"). Trustor acknowledges that but for the execution of this Deed of Trust, the Beneficiary would not enter into the Agreement or Inclusionary Promissory Note secured by this Deed of Trust. 2. Trustor's Estate. Trustor is lawfully seized of the estate hereby conveyed and has the right to grant and convey the Security; that other than this Deed of Trust, the Security is not encumbered except for obligations secured by deeds of trust, or any other security agreement, to secure financing or refinancing for the purchase and rehabilitation of the Property. 3. Repayment of the Loan. Trustor will promptly repay, when due, the principal loan amount, as required by the City Promissory Note secured by this Deed of Trust. 4. Subordination. This obligation secured by this Deed of Trust shall be subordinated to the Senior Loan and AHSC Loan, but the City's Affordability Restrictions on Transfer of Property shall remain in first place with respect to the Senior Loan and subordinate with respect to the AHSC Loan. 5. Prior Mortgages and Deeds of Trust; Charges; Liens. Trustor shall perform all of Trustor's obligations under any mortgage, deed of trust or other security agreement with a lien which has priority over this Instrument, including Trustor's covenants to make payments when due (subject to an applicable notice and cure provisions). Trustor will pay all taxes, assessments and other charges, fines and impositions attributable to the Security which may attain a priority over this Deed of Trust, by Trustor making any payment, when due, directly to the payee thereof. Trustor will promptly furnish to the Beneficiary all notices of amounts due under this paragraph, and in the event Trustor makes payment directly, Trustor will promptly discharge any lien which has priority over this Deed of Trust; provided that Trustor will not be required to discharge the lien of the Deed of Trust securing any senior lender or any other lien described in this paragraph so long as Trustor will agree in writing to the payment of the obligation secured by such lien in a manner acceptable to the Beneficiary, or will, in good faith, contest such lien by, or defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement of the lien or forfeiture of the Security or any part thereof. 6. Hazard Insurance. Trustor will keep the Security insured by such insurance policies in such amounts and for such periods as called for in the Agreement. All insurance policies and renewals thereof will include a standard mortgagee clause with standard lender's endorsement in favor of the holder of any senior lender and the Beneficiary as their interests may appear and in a form acceptable to the Beneficiary. The Beneficiary shall have the right to hold, or cause its designated agent to hold, the policies and renewals thereof, and Trustor shall promptly furnish to the Beneficiary, or its designated agent, the original insurance policies or certificates of insurance, all renewal notices and all receipts of paid premiums subject to the rights of any senior lender. hithe event of loss, Trustor will give prompt notice to the insurance carrier and the Beneficiary or its designated agent. The Beneficiary, or its designated agent, may make proof of loss if not made promptly by Trustor. The Beneficiary shall receive 30 days advance notice of cancellation of any insurance policies required under this Section. Unless the Beneficiary and Trustor otherwise agree in writing, insurance proceeds, subject to the rights of any senior lender, will be applied to restoration or repair of the Security damaged, provided such restoration or repair is economically feasible and the security of this Deed of Trust is not thereby impaired. If such restoration or repair is not economically feasible or if the security of this Deed of Trust would be impaired, again, subject to the rights of any senior lender, the insurance proceeds will be used to repay the loan secured by this Deed of Trust, with the excess, if any, paid to Trustor. If the Security is abandoned by Trustor, or if Trustor fails to respond to the Beneficiary, or its designated agent within 30 days from the date notice is mailed by either of them to Trustor that the insurance carrier offers to settle a claim for insurance benefits, the Beneficiary, or its designated agent, is authorized to collect and apply the insurance proceeds at the Beneficiary's option either to restoration or repair of the Security or to repay the loan. If the Security is acquired by the Beneficiary, all right, title and interest of Trustor in and to any insurance policy and in and to the proceeds thereof resulting from damage to the Security prior to the sale or acquisition will pass to the Beneficiary to the extent of the sums secured by this Deed of Trust immediately prior to such sale or acquisition subject to the rights of any senior lender. 7. Preservation and Maintenance of Secur ty. Trustor will keep the Security in good repair and will not commit waste or permit impairment or deterioration of the Security. 8. Protection of the Beneficiary's Security. If Trustor fails to perform the covenants and agreements contained in this Deed of Trust or if any action or proceeding is commenced which materially affects the Beneficiary's interest in the Security, including, but not limited to, default under the Deed of Trust securing any senior lender, eminent domain, insolvency, code enforcement, or arrangements or proceedings involving a bankrupt or decedent, then the Beneficiary, at the Beneficiary's option, upon notice to Trustor, may make such appearances, disburse such sums and take such action as it determines necessary to protect the Beneficiary's interest, including, but not limited to, disbursement of reasonable attorneys' fees and entry upon the Security to make repairs. Any amounts disbursed by the Beneficiary pursuant to this paragraph, with interest thereon, will become an indebtedness of Trustor secured by this Deed of Trust. Unless Trustor and the Beneficiary agree to other terms of payment, such amount will be payable upon notice from the Beneficiary to Trustor requesting payment thereof. and will bear interest from the date of disbursement at the rate payable from time to time on outstanding principal under the Inclusionary Promissory Note unless payment of interest at such rate would be contrary to applicable law, in which event such amounts will bear interest at the highest rate permissible under applicable law. Nothing contained in this paragraph will require the Beneficiary to insure any expense or take any action hereunder. 9. Inspection. The Beneficiary may make, or cause to be made, reasonable entries upon and inspections of the Security during normal business hours; provided that the Beneficiary will give Trustor reasonable notice of inspection. 10. Forbearance by the Beneficiary Not a Waiver. Any forbearance by the Beneficiary in exercising any right or remedy will not be a waiver of the exercise of any such right or remedy. The procurement of insurance or the payment of taxes or other liens or charges by the Beneficiary will not be a waiver of the Beneficiary's right to accelerate the maturity of the indebtedness secured by this Deed of Trust. 11. Remedies Cumulative. All remedies provided in this Deed of Trust are distinct and curmulative to any other right or remedy under this Deed of Trust or any other document, or afforded by law or equity, and may be exercised concurrently, independently or successively. 12. Successors and Assigns Bound. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the Beneficiary and Trustor subject to the provisions of this Deed of Trust. 13. Joint and Several Liability. All covenants and agreements of Trustor shall be joint and several. 14. Notice. Except for emy notice required under applicable law to be given in another manner, (a) any notice to Trustor provided for in this City Deed of Trust will be given by certified mail, return receipt requested, addressed to Trustor at 1640 Sepulveda Blvd, Suite 425, Los Angeles, California, 90025 with a copy to Bank of America CDC Special Holding Company, Inc. Cormmurity Development Banking,MAI-225-02-02, 225 Franklin Street, Boston, MA 02110 and WCH Affordable XVIII, LLC Attn: Graham Espley-Janes, 151 Kalmus Drive, #J5, Costa Mesa, CA 92626, (b) any notice to the Beneficiary will be given by certified mail, return receipt requested, to the Beneficiary at 20 Civic Center Plaza, P.O. Box 1988, Santa Ana, California 92702, Attention: Housing Manager, or at such other address as the Beneficiary may designate by notice to Trustor as provided above, and (c) to Trustee at 8121 E. Florence Avenue, Downey, California 90240. Notice shall be effective as of the date received as shown on the return receipt. 15. Governing Law. This Deed of Trust shall be governed by the laws of the State of California with venue in Orange County. 4 16. Severability. hi the event that any provision or clause of this Deed of Trust or the City Loan Note conflicts with applicable law, such conflict will not affect other provisions of this Deed of Trust or the Inclusionary Promissory Note which can be given effect without the conflicting provision, and to this end the provisions of the Deed of Trust and the City Loan Note are declared to be severable. 17. Captions. The captions and headings in this Deed of Trust are for convenience only and are not to be used to interpret or define the provisions hereof. 18. Default in Foreclosure: Remedies. Upon Truster's breach of any covenant or agreement of Trustor in this Deed of Trust or the Inclusionary Promissory Note secured by this Deed of Trust, including, but not limited to, the covenants to pay, when due, any sums secured by this Deed of Trust, the Beneficiary may declare all sums secured by this Deed of Trust immediately due and payable by delivering to Trustor notice thereof specifying: (1) The breach; (2) the action required to cure such breach; (3) a date not less than 30 days from the date the notice is received by Trustor as shown on the return receipt, by which such breach is to be cured provided, however, that if such default is not reasonable susceptible to being cured within 30 days, Trustor shall have a reasonable period to cure the defect so long as Trustor is diligently prosecuting the cure to completion; and (4) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Deed of Trust and sale of the Security. The notice will also inform Trustor of Trustor's right to reinstate after acceleration and the right to bring a court action to assert the non-existence of default or any other defense of Trustor to acceleration and sale. Notwithstanding anything to the contrary contained herein, a "default" shall not include (i) a transfer of a general partner's interest in Trustor when made in connection with the exercise by the Trustor's limited partner (the "Limited Partner") of its rights upon a default by a general partner under the Trustor's Amended and Restated Limited Partnership Agreement (the "Partnership Agreement") or upon a general partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting general partner is made within thirty (30) days of such default or, if such removal and substitution cannot reasonably be completed within thirty (30) days, so long as the Limited Partner commences to take action to remove and substitute the general partner with a reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the Property to the managing general partner of Trustor pursuant to the right of first refusal or to the general partners of Trustor pursuant to the purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest under and in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of a limited partner interest or an interest in a limited partner of the Trustor, (v) any sale, transfer or other disposition of an interest in a limited partner of the Borrower. If the breach is not cured on or before the date specified in the notice or such longer period as provided above or in the Inclusionary Promissory Note or the Agreement, the Beneficiary, at the Beneficiary's option, may: (a) declare all of the sums secured by this Deed of Trust to be imrnediately due and payable without further demand and may invoke the power of sale and any other remedies permitted by California law; (b) either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its security, enter upon the Security and take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of the Trustee, and do any acts which it deems necessary or desirable to preserve the value or marketability of the Property, or part thereof or interest therein, increase the income therefrom or protect the security thereof. The entering upon and taking possession of the Security shall not cure or waive any breach hereunder or invalidate any act done in response to such breach and, notwithstanding the continuance in possession of the Security, the Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust, or by law upon occurrence of any uncured breach, including the right to exercise the power of sale; (c) commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof; (d) deliver to the Trustee a written declaration of default and demand for sale, pursuant to the provisions for notice of sale found at California Civil Code Sections 2924, et seq., as amended from time to time; or (e) exercise all other rights and remedies provided herein, in the instruments by which Trustor acquires title to any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or provided by law. In addition, if an Event of Default occurs hereunder or under the Note, prior to taking any remedy under this Deed of Trust or any other document evidencing or securing this Note, Beneficiary shall first give notice of the occurrence of such Event of Default to the Limited Partner and the Limited Partner shall have not less than 30 days to cure such Event of Default, provided if in order to cure such Event of Default the Limited Partner gives notice to the Beneficiary that Limited Partner must remove and replace the general partner or general partners of Trustor, Limited Partner shall have until 30 days following the effective date of such removal and replacement to cure such Event of Default. The Beneficiary shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph, including, but not limited to, reasonable attorneys' fees. 19. Trustor's Right to Reinstate. Notwithstanding the Beneficiary's acceleration of the sums secured by this Deed of Trust, Trustor will have the right to have any proceedings begun by the Beneficiary to enforce this Deed of Trust discontinued at any time prior to 5 days before sale of the Security pursuant to the power of sale contained in this Deed of Trust or at any time prior to entry of a judgment enforcing this Deed of Trust if. (a) Trustor pays the Beneficiary all suras which would be then due under this Deed of Trust and no acceleration under the Inclusionary Promissory Note has occurred; (b) Trustor cures all breaches of any other covenants or agreements of Trustor contained in this Deed of Trust; (c) Trustor pays all reasonable expenses incurred by the Beneficiary and the Trustee in enforcing the covenants and agreements of Trustor contained in this Deed of Trust and in enforcing the Beneficiary's and the Trustee's remedies, including, but not limited to, reasonable attorneys' fees; and (d) Trustor takes such action as the Beneficiary may reasonably require to assure that the lien of this Deed of Trust, the Beneficiary's interest in the Security and Trustor's obligation to pay the suras secured by this Deed of Trust shall continue unimpaired. Upon such payment and cure by Trustor, this Deed of Trust and the obligations secured hereby will remain in full force and effect as if no acceleration had occurred. 20. Acceptance by Trustee. Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party to this Deed of Trust of pending sale under any other deed of trust or any action or proceeding in which Trustor, Beneficiary, or Trustee shall be a party unless brought by Trustee. 21. Reconveyance. Upon payment of all sums secured by this Deed of Trust, the Beneficiary will request the Trustee to reconvey the Security and will surrender this Deed of Trust and the Inclusionary Promissory Note to the Trustee. The Trustee will reconvey the Security without warranty and without charge to the person or persons legally entitled thereto. Such person or persons will pay all costs of recordation, if any. 22. Substitute Trustee. The Beneficiary, at the Beneficiary's option, may from time to time remove the Trustee and appoint a successor trustee to any Trustee appointed hereunder. The successor trustee will succeed to all the title, power and duties conferred upon the Trustee herein and by applicable law. 23. Request for Notice. Trustor requests that copies of the notice of default and notice of sale be sent to Trustee at the address set forth in Section 14 above. 24. Nonrecourse Liability. Neither Trustor nor any partner of Trustor shall have any personal liability under the Agreement, Inclusionary Promissory Note, and this Deed of Trust and any judgment, decree or order for payment of money obtained in any action to enforce the obligation of Trustor to repay the loan evidenced by such documents shall be enforceable against Trustor only to the extent of Truster's interest in the Property. (Signatures on Following Page) IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first written above. SANTA ANA ARTS COLLECTIVE, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, a California limited liability company, its administrative general partner By: - fV�= Kasey Burke, V1Ce"P sident By: WCH Affordable XVIII, LLC, a California limited liability company, its managing general partner M Graham P. Espley-Jones, President 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 Los Angeles On July 13, 2017 before me, Rutzel M. Castillo, Notary Public (insert name and title of the officer) personally appeared Kasey Burke 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 (Seal) RUTZEL M. CASTILLO Colnfnitalon # 2100469 Notary Public • California Lot Anpalas County NCC n.li basUff Pala+ IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first written above. SANTA ANA ARTS COLLECTIVE, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, a California limited liability company, its administrative general partner IM Kasey Burke, Vice President By: WCH Affordable XVIII, LLC, a California limited liability company, its managing general partner By: Sandra Gibbons, Exec tive Vice President / CFO CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE 5 1189 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 1 County of Orange J} On July 13, 2017 before me, Leanne Truofreh, Notary Public Date personally appeared Here Insert Name and Title of the Officer Sandra Gibbons Nome(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person() whose names) Wince subscribed to the within instrument and acknowledged to me that Ire/she/they executed the same in 4is/her/t+ieir authorized capacity(iea), and that by his/her/t4ieir signatureA on the instrument the person, or the entity upon behalf of which the person() acted, executed the instrument. LEANNE TRUOFREH Commission # 2064657 a:=m Z , Notary Public - California z Orange County n My Comm. Expires May 12, 2098 Place Notary Seat and/or Stamp Above 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 OPTIONAL Signature bf Notary Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: 1st Amended & Restated Inclusionary DOT Document Date: July 5, 2017 Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner— ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian of Conservator ❑ Other: Signer is Representing: 02017 National Notary Association Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner— ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian of Conservator ❑ Other: Signer is Representing: Exhibit Do. Inclusionary Housing p romissory Note FIRST AMENDED AND RESTATED INCLUSIONARY HOUSING FUNDS PROMISSORY NOTE SECURED BY SUBORDINATED DEED OF TRUST TO THE CITY OF SANTA ANA, CALIFORNIA (1666 N. Main Street) $4,775,000.00 July 5th, 2017 Santa Ana, California 1. Principal Amount of Loan FOR VALUE RECEIVED, Santa Ana Arts Collective, LP, a limited partnership ("Borrower"), hereby promises to pay to the CITY OF SANTA ANA, a charter city and municipal corporation ("City"), or order, a principal amount not to exceed FOUR NIILLION SEVEN HUNDRED AND SEVENTY FIVE THOUSAND DOLLARS ($4,775,000.00) or so much thereof as shall be disbursed hereunder, with three percent simple interest (3%) commencing upon filing of Notice of Completion, pursuant to the CDBG and Inclusionary Program Loan Agreement (said "Agreement') between Borrower and the City dated concurrently herewith, which are both incorporated herein by this reference. This loan is made pursuant to the "Housing Opportunity Ordinance In -Lieu Fee Program" or "In -Lieu Fees" with money funded through the Program as "Inclusionary Housing Funds". Any capitalized term not otherwise defined in this Note shall have the meaning ascribed to such term in the Agreement. The obligation of Borrower to City hereunder is subject to the terms of said Agreement, the Affordability Restrictions on Transfer of Property, CDBG Deed of Trust, CDBG Promissory Note, Inclusionary Deed of Trust and this Note. Said documents are public records on file in the offices of the City, and the provisions of said documents are incorporated herein by this reference. This Note, said Agreement, the Affordability Restrictions on Transfer of Property, CDBG Promissory Note, CDBG Deed of Trust and the Inclusionary Deed of Trust are sometimes collectively referred to herein as the "Loan Documents." The Loan Documents and the rights and responsibilities inure to the benefit of the City of Santa Ana. Any capitalized term which is not otherwise defined herein shall have the meaning ascribed to such term in the Agreement. This Note evidences the obligation of Borrower to the City for the repayment of the Inclusionary Loan of Inclusionary Funds attributable to the acquisition, adaptive reuse and. construction of the Property, and related soft costs. This Note is payable at the principal office of City of Santa Ana — Community Development Agency, 20 Civic Center Drive, Santa Ana, California 92702, Att: Housing Division, or at such other place as the holder hereof may inform Borrower in writing, in lawful money of the United States. 2. Definitions. For the purpose of calculating the payments to be made by Borrower to City pursuant to this Note, the following terms shall have the following respective meanings: "Agreement" means the Loan Agreement between the City and the Developer, and any attachments or amendments thereto. "AHSC Loan" means a permanent loan of Affordable Housing and Sustainable Communities program funds from HCD administered by the California Strategic Growth Council in the amount of $4,944,130. "AHSC Deed of Trust" means the any deed(s) of trust securing athe AHSC Loan encumbering the Property. "AHSC Documents" means, collectively, the loan agreement governing the AHSC, the AHSC Note, the AHSC Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the AHSC Loan. "Applicable Law" shall mean those federal, state and local laws, ordinances, regulations, policies and procedures applicable to the Inclusionary Housing Program, and the Inclusionary Funds. "Area Median Income" means the median income figures for Orange County as published by the U.S. Department of Housing and Urban Development (HUD). Also may be referred to as "AMI" herein. "Borrower" means Santa Ana Arts Collective, LP, a California limited partnership. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 30. "Inclusionary Loan" shall mean the loan evidenced by this Note repayable to the City in accordance with the terms of this Note and secured by the Inclusionary Deed of Trust. "City's Percentage" with reference to the Residual Receipts, shall mean aggregate percentage of thirty point thirteen percent (30.13%) of the total Residual Receipts from the Property, which shall be applicable to the HOME Loan, CDBG Loan, and Inclusionary Loan, as further described in Section 5 hereof. "Closing Costs" shall mean: (i) In the case of a Sale, reasonable brokerage commissions payable to a broker as a result of the Sale, which shall not in any event exceed the customary amount charged -for similar transactions in the immediate market place, costs of title insurance premiums, documentary stamp taxes, escrow fees, recording charges, loan repayment charges and other costs reasonably incurred with respect to the Property, in each case actually paid by Borrower as a condition of the Sale. (ii) In the case of a Refinancing, the reasonable and necessary costs of consumating such Refinancing, including, without limitation, loan fees, loan repayment charges, costs of title insurance premiums, escrow fees, recording fees and attorneys' fees. "Inclusionary Housing Program" (Inclusionary) has the meaning set forth in the Recitals above. "Gross Revenues" shall mean all revenues and receipts of every kind actually received by Borrower from operating the Property, and all parts thereof, including, but not limited to, income from both cash and credit transactions, rental from leased and/or subleased spaces and parking fees and charges (but not including security deposits and other tenant deposits, except to the extent such deposits are forfeited to the Borrower under the tenant's lease). Gross Revenues also includes any casualty insurance proceeds in excess of those used to restore the Property and any rental interruption insurance proceeds. Borrower shall establish and maintain accounts for the Gross Revenues (the "'Project Accounts") that are segregated from revenues and income received by Borrower from all other projects. Gross Revenues shall also include all interest earned on the Project Accounts. Gross Revenues shall not include capital contribution and loan proceeds received by borrower from any source. "Operating Ex en uses" shall mean the sum of the following: (i) payments of principal and interest and all other charges relating to the Senior Loan(s); (ii) general partner fee and tax credit investor management fees pursuant to the Borrower's amended and restated partnership agreement ("Partnership Agreement"); (iii) the cost of any supportive services provided to tenants of the Property, including fees and reimbursements payable to the provider or coordinator of such supportive services; (iv) debt service payments (excluding debt service due from residual receipts or surplus cash of the Property) on senior loan obligations associated with the Property, and approved by Lender; (v) tax credit adjustment payments payable to Maker's tax credit investor pursuant to Borrower's Partnership Agreement; (vi) payments made on loans advanced by any partner or member of Borrower for the purpose of paying operating expenses of the Property; (vii) a property management fee equal to 8% of gross rents; (viii) Owner Administration Fee of 5% of gross rents; (ix) deposits into required reserves; (x) any deferred developer fee; (xi) all other actual, reasonable cash operating costs and expenses, calculated on an annual basis, that are directly attributable to managing and operating the Property, including, without limiting the generality of the foregoing, the following: costs and expenses for real and personal property taxes, special assessments or similar charges; water, fuel, electricity and other utilities; heating, ventilation and air conditioning expenses; labor; supplies; tools; equipment; insurance; advertising and marketing; accounting and legal fees; brokerage commissions and other leasing expenses; reasonable reserves for all anticipated expenses as approved by the City; and other such items constituting operation, maintenance and repair costs actually paid by the Borrower, subject to the following conditions: (a) Depreciation and amortization expenses shall not be considered Operating Expenses, except as otherwise provided herein. (b) Any expenses, compensation or fees paid to any affiliate of Borrower shall only be included as Operating Expenses to the extent they are not in excess of the reasonable expenses, compensation or fees which would be payable to unrelated third parties in arms -length transactions for similar services in the Santa Ana, California area. (vii) Any other expenses necessary to meet senior tender requirements and requirements of Borrower's limited partner, or its assignee, as set forth in Borrower's Agreement of Limited Partnership (the "Partnership Agreement"). "Inclusionary Deed of Trust" shall mean the Inclusionary Deed of Trust in favor of the City, securing the Inclusionary Loan, substantially in the form attached to the Agreement as Exhibit D, which is incorporated herein by this reference. "Extremely Low Income" means an adjusted income which does not exceed thirty percent (30%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "Low Income" means an adjusted income which does not exceed eighty percent (80%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. 4 "Inclusionary Assisted Units" shall mean those rental units purchased and rehabilitated on the Property which are subject to the term of affordability. "Inclusionary Funds" shall mean the money provided under the Inclusionary Housing Program for the construction of the rental units hereunder. "Property" shall mean that property located at 1666 N. Main Street, Santa Ana, California. "Refinancing" shall mean changing the then existing financing on the Property by, without limitation, modifying the interest rate and/or the term of the existing Senior Loan, increasing or reducing the amount of the existing Senior Loan, paying off the existing Senior Loan and obtaining new Senior Loan, except for the payoff of the conventional lender's acquisition loan for the Property. Notwithstanding the projected sale of the senior permanent loan on the Project to California Community Reinvestment Corporation (`CCRC") and any subsequent transfer of the loan in whole or in part by CCRC shall not be deemed a Refinancing for purposes hereof. "Refinancing Proceeds" shall be disbursed as set forth in Section 6 hereof. "Residual Receipts" shall mean the Gross Revenues from the Property for each year, less deductions for Operating Expenses from the same building, applicable to each such year to the extent not already deducted as an Operating Expense. "Sale" shall mean any transfer, assignment, or conveyance or lease of the Property or any portion thereof, or any interest therein by the Borrower, and includes any transfer, assignment or sale of any partnership interest in the Borrower by an individual or entity which is a general or limited partner in the Borrower, or any interest by any individual or entity which holds an interest in any such general or limited partner in the Borrower, which brings the cumulative total of all such direct and indirect transfers, assignments and sales during the term of this Note to more than thirty-five percent (35%) of the ownership interests in the Borrower, and any such transfer, assignment or sale of a direct or indirect partnership interest thereafter. Sale includes a sale in condemnation or under threat thereof. Sale does not include dedications and grants of easements to public and private utility companies of the kind customary in real estate development. Notwithstanding anything to the contrary contained herein, a "Sale" shall not include any transaction not considered a "transfer' under Section 13. "Senior Loan" shall mean any senior loans made to Borrower, for payment of acquisition and/or rehabilitation/construction costs, and shall include any subsequent loan that refinances said Senior Loan. "Tenn" the term for repayment of this Note shall mean fifty-five (55) years from the date of recording of the loan from the State of California Department of Housing and Community Development to Borrower, but in no event shall the Term end later than July 1, 2075. "Term of Affordability" the terns of affordability shall be fifty-five (55) years. "Very Low Income" means an adjusted income which does not exceed fifty percent (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. 3. Loan Repayment. Borrower shall make payments to the City as provided in Sections 5 (Residual Receipts), 6 (Refinancing Proceeds), 7 (Sale Proceeds) and 9 (Accelerated Loan Repayment) of the Agreement. 4. Operating Capital Improvement Loan. If the replacement reserve account ("reserves") is depleted due to unforeseen repairs and the General Partner makes a loan to the Partnership, the reserves must be fully funded prior to payment of said loan. The outstanding loan balance will be reflected in the annual report. 5. Annual Loan Repayment/ Residual Receipts. a. Commencing on the date one hundred fifty (150) days after the close of the initial Calendar Year following the issuance of the Certificate of Completion and on or before the 150' day of each Calendar Year thereafter the Borrower shall thereafter make a loan payment to the City annually, in the amount of the lesser of the outstanding balance due under this Note or the City's Percentage of the Residual Receipts, as provided in this Section 5. b. Within one hundred fifty (150) days after the close of the initial Calendar Year following the Issuance of the Certificate of Completion and on or before the 150th day of each Calendar Year thereafter, the Borrower shall submit to the City an audited financial statement of Gross Revenues and Operating Expenses attributable to the Property for the applicable Calendar Year, along with a computation of the amount of the Residual Receipts applicable to such Calendar Year with which to make a City Loan payment then due. c. Except as otherwise provided, the Borrower shall pay to the City the City's Percentage of the Residual Receipts as payment of interest and then to principal. At least fifty percent (50%) of the Residual Receipts shall remain with the Borrower, with all Residual Receipts remaining with Borrower to the extent the City Loan has been fully repaid. d. Borrower shall retain fifty percent of the Residual Receipts. The other fifty percent shall be used to repay the other public agency loans according to the table below: SOURCE PERCENTAGE CDBG Loan 2.01% HOME Loan 8.92% Inclusionary Housing Loan 19.20% State of California Housing and Community Development Affordable Housing Loan 19.87% TOTAL 50.00% e. The Residual Receipts payment shall be made not later than one hundred fifty (150) days after the close of the Calendar Year. Such payment shall be applied first to any late fees, then to reduce the interest and then the principal balance of the loan. 6. Loan Repayment from Refinancing Proceeds. The Borrower shall make a loan payment to the City from every Refinancing that occurs during the term of this Note (other than refinancing of the conventional lender acquisition and construction loan) not to exceed the outstanding balance of principal on this Note, to the extent of the City's Percentage of the Refinancing Proceeds (if any), as follows: the cash proceeds from such Refinancing shall be applied first to pay Closing Costs; next, the amount necessary to pay in full the balance remaining on the Senior Loan and AHSC Loan; next, the amount necessary to pay any deferred developer fee in full; and next, the Borrower shall pay to the City the City's Percentage of the Refinancing Proceeds to the extent of the outstanding balance on this Note. At least fifty percent (50%) of the Refinancing proceeds shall remain with Borrower, with all remaining Refinancing proceeds remaining with the Borrower to the extent the outstanding balance of the Note has been fully paid. Such payment shall be due on the date of such Refinancing, and shall be applied to reduce the interest and then principal balance of the Loan. The City shall not be required to reconvey the lien of the Deed of Trust if Refinancing Proceeds are insufficient to repay the Loan in full. 7. Loan Repavment from Sale Proceeds. The Borrower shall make a loan payment, not to exceed the outstanding balance of principal on this Note subject to Section 14 herein, to the City from any Sale that occurs during the term of the City Loan, to the extent of the City's Percentage of the Sale Proceeds, as follows: gross sale proceeds are applied first to pay Closing Costs, next to pay in full the balance remaining on the Senior Loan and AHSC Loan; next, the amount necessary to pay any deferred developer fee in full; and next, ,the Borrower shall pay to the City the City's Percentage of the total Sale Proceeds, not to exceed the outstanding amount of principal due on this Note. At least fifty percent (50%) of the Sale Proceeds shall remain with Borrower, with all remaining Refinancing proceeds remaining with the Borrower to the extent the outstanding balance of the Note has been fully paid. Such payment shall be due on the date of such Sale, and shall be applied to reduce the interest and principal balance of the Loan. The City shall not be required to reconvey the lien of the Deed of Trust if Sale Proceeds are insufficient to repay the Loan in full. 8. Accelerated Loan Payment. The full principal amount outstanding shall be due and payable on the earlier to occur of the following: a. Sale or Refinancing of the Property as provided further in Section 13 hereof, unless: (i) in the case of a Sale in which the Sale Proceeds are insufficient to repay in fall the City Loan, the City approves such sale in the exercise of its reasonable discretion and the purchaser assumes the balance of the City Loan in accordance with the terms of this Note; or (ii) in the case of a Refinancing in which the Refinancing Proceeds are insufficient to repay in full the City Loan, the City approves such Refinancing in the exercise of its reasonable discretion and the Borrower remains obligated pursuant to the terms of this Note. b. In event of default (subject to any applicable notice and cure provisions) pursuant to any of the Loan Documents, AHSC Loan Documents,. c. Any default (subject to any applicable notice and cure provisions by Borrower) as to any other loan or loans by City to Borrower with respect to the Property; or d. The expiration of the Term of this Note. On that date, the City agrees to review the performance of the Property and consider in good faith any reasonable request by Borrower to modify the terms or extend the Term of this City Note. 9. Prepayment Borrower may prepay the outstanding principal balance under this Note, in whole or in part, at any time without penalty, however the Affordability Covenants and Restrictions still remain for the entire Affordability Period of fifty-five (55) years. 10. Lawful Money. Principal is payable in lawful money of the United States of America. 11. Application of Payments; Late Charges. a. Any payments received by the City pursuant to the terms hereof shall be applied first to sums, other than principal, due the City pursuant to this Note, and the balance, if any, to the payment of principal. b. If any payment is not received by the City within fifteen (15) Business Days after Developer's receipt of written notice that such payment was not received when due; then in addition to the remedies conferred upon the City pursuant to this Note and the other Loan Documents, (i) a late charge of four percent (4%) of the amount due and unpaid will be added to the delinquent amount to compensate the City for the expense of handling the delinquency and (ii) the amount due and unpaid, excluding the late charge, shall bear interest at the highest annual rate which may lawfully be charged and collected under applicable law on the obligation evidenced by this Note, computed from the date on which the amount was due and payable until paid. Without prejudice to the rights of the City hereunder or under any of the other Loan Documents, Borrower shall indemnify the City against, and shall pay the City on demand, any expense or loss which it may sustain or incur as a result of the failure by Borrower to pay when due any installment of principal, fees, or other amounts payable to the City under this Note or any other Loan Document, to the extent that any such expense or loss is not recovered pursuant to such foregoing provisions. A certificate of the City setting forth the basis for the determination of the amounts necessary to indemnify the City in respect of such expenses or direct loss, submitted to Borrower by the City, shall be conclusive and binding for all purposes except as immediately corrected by Borrower notice to City. 12. Securi This Note is secured by the recorded Deed of Trust. 13. Acceleration by Reason of Transfer or Financing. a. In order to induce City to make the loan evidenced hereby, Borrower agrees that in the event of any transfer of the Property without the prior written consent of City (other than a transfer resulting from a foreclosure, or conveyance by deed in lieu of foreclosure, by the holder of the Senior Loan Deed of Trust or the AHSC Deed of Trust), City shall have the absolute right at its option, without prior demand or notice, to declare all sums secured hereby immediately due and payable. Consent to one such transaction shall not be deemed to be a waiver of the right to require consent to future or successive transactions. City may grant or deny such consent in its sole discretion and, if consent should be given, any such transfer shall be subject to this Section 13, and any such transferee shall assume all obligations hereunder and agree to be bound by all provisions contained herein. Such assumption shall not, however, release Borrower from any liability thereunder without the prior written consent of City. b. As used herein, "transfer" includes the Sale, agreement to sell, transfer or conveyance of the Property, or any portion thereof or interest therein, whether voluntary, involuntary, by operation of law or otherwise, the execution of any installment land sale contract or similar instrument affecting all or a portion of the Property, or the lease of all or substantially all of the Property. 'Transfer' shall not include the leasing of individual residential units on the Property, so long as Borrower complies with the provisions of the Loan Agreement and the Affordability Covenants and Restrictions relating to such leasing activity, nor shall it include a conveyance of the Property to a limited partnership in which Meta Housing Corporation or a limited liability wholly owned by Meta Housing Corporation is a general partner, or to a corporation or limited liability company that is wholly owned by the Borrower or its affiliates and that is formed for the sole purpose of owning and operating the Property, or the sale back to the Borrower. In the event of any Refinancing or partial Refinancing in an amount in excess of the balance of the Senior Loan and AHSC Loan, without the prior written consent of City (which consent City may grant or deny in its sole discretion), then the entire outstanding balance of the City Loan shall be repaid to the City at the time of each Refinancing or partial Refinancing. 9 c. Notwithstanding anything to the contrary contained herein, a "transfer" shall not include (and it shall not be deemed a Sale) (i) a transfer of a general partner's interest in Borrower when made in connection with the exercise by the Borrower's limited partner (the "Limited Partner") of its rights upon a default by a general partner under the Borrower's partnership agreement (the "Partnership Agreement") or upon a general partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting general partner is made within thirty (30) days of such default or, if such removal and substitution cannot reasonably be completed within thirty (30) days, so long as the Limited Partner commences to take action to remove and substitute the general partner with a reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the Property to the managing general partner of Borrower pursuant to the right of first refusal or to the general partners of Borrower pursuant to the purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest under and in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of an interest in a limited partner of the Borrower. 14. Event of Default. Subject to the provisions of Section 23 hereof, the occurrence of any of the following shall be deemed to be an event of default ("Event of Default") hereunder: (a) failure by Borrower to make any payments provided for herein, and if such default is not made good within fifteen (15) Business Days after Developer's receipt of written notice that such payment was not received when due; or (b) failure by Borrower to perform any covenant or agreement in the Deed of Trust, the Agreement, or the Affordability Covenants and Restrictions within thirty (30) days after written demand therefor by City (or, in the event that more than thirty (30) days is reasonably required to cure such default, should Borrower fail to promptly commence such cure, and diligently and continuously prosecute same to completion). 15. Remedies. Upon the occurrence of an Event of Default, after any applicable notice has been provided and the expiration of any applicable cure period therefore and subject to the provisions of Section 21 hereof, City may declare all sums evidenced hereby immediately due and payable by delivery to the Trustee named in the Deed of Trust securing this Note, and to Borrower, written declaration of default and demand for sale, and written notice of default and of election to cause the Property to be sold, which notice Trustee shall cause to be duly filed for record and City may foreclose on the Deed of Trust. City shall also deposit with Trustee the Deed of Trust, this Note and all documents evidencing expenditures secured thereby and evidenced hereby. Upon the occurrence of an Event of Default (and so long as such Event of Default shall continue), the entire balance of principal shall bear interest at the Bank of America reference rate on the due date of the delinquent payment plus four percent (4%). No delay or omission on the part of the City in exercising any right under this Note or under any of the other Loan Documents shall operate as a waiver of such right. 10 16. Attornev Fees. If this City Promissory Note is not paid when due or if any Event of Default occurs, Borrower promises to pay all costs of enforcement and collection, including but not limited to, reasonable attorneys' fees, whether or not any action or proceeding is brought to enforce the provisions hereof. 17. Severability. Every provision of this Note is intended to be severable. In the event any term or provision hereof is declared by a court of competent jurisdiction, to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable. 18. Number and Gender. In this Note the singular shall include the plural and the masculine shall include the feminine and neuter gender, and vice versa, if the context so requires. 19. Non-recourse. The City Loan is a nonrecourse obligation of the Borrower. Neither Borrower, nor its partners nor any other party shall have any personal liability for repayment of the City Loan or for any other amounts under any of the documentation evidencing, securing or describing the City Loan. The sole recourse of City under this Note and the Deed of Trust for repayment of the City Loan and for such other amounts arising therefrom shall be the exercise of its rights against the Property and related security thereunder. 20. Subordination. It is hereby expressly agreed and aelmowledged by Borrower and City that the Deed of Trust is a subordinate deed of trust, and that this Note is subject and subordinate to any Senior Deed of Trust. 21. Notice of Default. a. Subject to the applicable cure periods set forth in Section 14 and subject to the further provisions of this Section 21, failure or delay by the Borrower to perform any term or provision of this Note constitutes a default under this Note. The Borrower must immediately commence to cure, correct, or remedy such failure or delay and shall complete such cure, correction or remedy with reasonable diligence. b. The City shall give written notice of default to the Borrower specifying the default complained of by the City. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. 11 c. Except in the case of a monetary event of default, the Borrower shall not be in default so long as it endeavors to complete such cure, correction or remedy with reasonable diligence, provided such cure, correction or remedy is completed within the applicable time period set forth herein after receipt of written notice (or such additional time as may be deemed by the City to be reasonably necessary to correct the default). d. Any failures or delays by the City in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by the City in asserting any of its rights and remedies shall not deprive the City of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert, or enforce any such rights or remedies. e. If a monetary event of default occurs under the terms of this Note or the Deed of Trust, prior to exercising any remedies thereunder City shall give Borrower written notice of such default. Borrower shall have a period of fifteen (15 Business Days after such notice is received within which to cure the default prior to exercise of remedies by City under this Note and the Deed of Trust. f If a non -monetary event of default occurs under the terms of this Note or the Deed of Trust, prior to exercising any remedies thereunder, City shall give Borrower notice of such default. If the default is reasonably capable of being cured within thirty (30) days, Borrower shall have such period to effect a cure prior to exercise of remedies by the City under this Note and the Deed of Trust. If the default is such that it is not reasonably capable of being cured within thirty (30) days, and Borrower (i) initiates corrective action within said period, and (ii) diligently, continually, and in good faith works to effect a cure as soon as possible, then borrower shall have such additional time as is reasonably necessary to cure the default prior to exercise of any remedies by City. In no event shall City be precluded from exercising remedies if its security becomes or is about to become materially jeopardized by any failure to cure a default or the default is not cured within one hundred eighty (18 0) days after the first notice of default is given. g. In addition, if an Event of Default occurs hereunder, prior to taking any remedy under this Note or any other document evidencing or securing this Note, City shall first give notice of the occurrence of such Event of Default to the Limited Partner and the Limited Partner shall have not less than 30 days to cure such Event of Default, provided if in order to cure such Event of Default the Limited Partner gives notice to the City that Limited Partner must remove and replace the general partner or general partners of Borrower, Limited Partner shall have until 30 days following the effective date of such removal and replacement to cure such Event of Default. 22. Insurance and Condemnation. In the event of any fire or other casualty to the Property or eminent domain proceedings resulting in condemnation of the Property or any part thereof, Borrower shall have the right to rebuild the Property, and to use all available insurance or condemnation proceeds therefor, provided that (a) such proceeds are sufficient to keep the City Loan in balance and rebuild the 12 Property in a manner that provides adequate security to City for repayment of the City Loan or if such proceeds are insufficient then Borrower shall have funded any deficiency, (b) City 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 material default then exists under this Note or the Deed of Trust. If the casualty or condemnation affects only part of the Property and total rebuilding is infeasible, then proceeds may be used for partial rebuilding and partial repayment of the City Loan in a manner that provides adequate security for repayment of the remaining balance of the City Loan. 23. Force Maieure. Notwithstanding specific provisions of this Note, performance hereunder shall not be deemed to be in default where delays or defaults are due to: war; insurrection; strikes; lock -outs; riots; floods; earthquakes; fires; casualties; acts of God or other deities; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor or supplier; acts of the other party; acts or failure to act of the City or any other public or governmental City or entity (except that any act or failure to act of City shall not excuse performance by City); or any other causes beyond the reasonable control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time the party claiming such extension gives notice to the other party, provided notice by the party claiming such extension is given within thirty (30) days after the commencement of the cause. Times of performance under this Note may also be extended in writing by the City and the Borrower. 24. Assignments. The City, and the assignee of the City, shall have the right to assign this Note and the Deed of Trust securing this Note, without any further act of Borrower. The assignee shall give notice to Borrower as soon as practicable after such assignment. 13 This City Promissory Note is hereby agreed to and executed on the date first set forth above. "BORROWER" SANTA ANA ARTS COLLECTIVE, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, a California limited liability company, its administrative general partner By: Kasey Burke, Vice went By: WCH Affordable XVIII, LLC, a California limited liability company, its managing general partner By: Cnaham P. Espley-Jones, President 44 This City Promissory Note is hereby agreed to and executed on the date first set forth above. "BORROWER" SANTA ANA ARTS COLLECTIVE, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, a California limited liability company, its administrative general partner Ma Kasey Burke, Vice President By: WCH Affordable XVIII, LLC, a California limited liability company, its managing general partner By: Sandra Gibbons, Exec ve Vice President / CFO 14 Exhibit Eo. CDBG I U i rol a, FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana Clerk of the Council 20 Civic Center Plaza P.O. Box 1988 (M-30) Santa Ana, California 92702 Attn: Clerk of the Council FIRST AMENDED AND RESTATED CDBG DEED OF TRUST AND ASSIGNMENT OF RENTS THIS FIRST AMENDED AND RESTATED CDBG DEED OF TRUST AND ASSIGNMENT OF RENTS (the "Deed of Trust") made this 5h day of July, 2017 between Santa Ana Arts Collective, LP , a California limited partnership (the "Trustor"), AmeriNat, a Minnesota corporation (the "Trustee"), and the City of Santa Ana, a charter city and municipal corporation (the "Beneficiary"). Trustor, in consideration of the promises herein recited and the trust herein created, irrevocably grants, transfers, conveys and assigns to Trustee, in trust, with power of sale, the property located in the City of Santa Ana, County of Orange, State of California, described in the attached Exhibit A and more commonly known as 1666 N. Main Street, Santa Ana, California (the 'Property"); TOGETHER with all the improvements now or hereafter erected on the Property, and all easements, rights, appurtenances and all fixtures now or hereafter attached to the Property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the Property covered by this CDBG Deed of Trust; provided that so long as Trustor is not in default hereunder, it shall be permitted to control the Property in accordance with the requirements of that certain CDBG and Inclusionary Program Loan Agreement entered into between the Trustor and the Beneficiary, dated concurrently herewith, which Agreements are both on file with the Beneficiary as a public record; TOGETHER with the right, power and authority during the continuance of these Trusts, to collect the rents, issues, and profits of the Property, reserving unto the Trustor the right, prior to any default by Trustor in payment of the indebtedness secured by this Deed of Trust or in the performance of any agreement under this Deed of Trust, to collect and retain these rents, issues and profits as they become due and payable; and, TOGETHER with all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected, or hereafter to be erected, on the Property which are necessary to the complete and comfortable use and occupancy of such building or buildings for the purposes for which they were or are to be erected, including all other goods and chattels and personal property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the one herein described and referred to, and all renewals or replacements thereof or articles in substitution therefor, whether or not the same are, or shall be attached to said building or buildings in any manner; and all of the foregoing, together with the Property, is herein referred to as the "Security"; To have and to hold the Security together with acquittances to the Trustee, its successors and assigns forever; TO SECURE to the Beneficiary (a) the repayment of the sums evidenced by a Promissory Note to the Beneficiary executed by Trustor of even date herewith in the principal amount of Five Hundred Thousand Dollars ($500,000.00) (the "CDBG Promissory Note"); (b) the performance of the covenants and agreements of Borrower contained in a certain Agreement as hereinafter defined; and (c) the payment of all other sums, with interest thereon, advanced in accordance herewith to protect the security of this Deed of Trust; and the performance of the covenants and agreements of Trustor contained herein. TRUSTOR AND THE BENEFICIARY COVENANT AND AGREE AS FOLLOWS: 1. The Agreement. This Deed of Trust is executed and delivered, along with the CDBG Promissory Note and the Loan Agreement, to benefit the Property. A copy of said Loan Agreement is on file as a public record with the Beneficiary and is incorporated herein by reference (the "Agreement"). Trustor acknowledges that but for the execution of this Deed of Trust, the Beneficiary would not enter into the Agreement or CDBG Promissory Note secured by this Deed of Trust. 2. Trustor's Estate. Trustor is lawfully seized of the estate hereby conveyed and has the right to grant and convey the Security; that other than this Deed of Trust, the Security is not encumbered except for obligations secured by deeds of trust, or any other security agreement, to secure financing or refinancing for the purchase and rehabilitation of the Property. 3. Repayment of the Loan. Trustor will promptly repay, when due, the principal loan amount, as required by the City Promissory Note secured by this Deed of Trust. 4. Subordination. This obligation secured by this Deed of Trust shall be subordinated to the Senior Loan and AHSC Loan, but the City's Affordability Restrictions on Transfer of Property shall remain in first place with respect to the Senior Loan and subordinate with respect to the AHSC Loan. 5. Prior Mortgages and Deeds of Trust; Charges; Liens. Trustor shall perform all of Trustor's obligations under any mortgage, deed of trust or other security agreement with a lien which has priority over this Instrument, including Trustor's covenants to make payments when due (subject to an applicable notice and cure provisions). Trustor will pay all taxes, assessments and other charges, fines and impositions attributable to the Security which may attain a priority over this Deed of Trust, by Trustor making any payment, when due, directly to the payee thereof. Trustor will promptly furnish to the Beneficiary all notices of amounts due under this paragraph, and in the 2 event Trustor makes payment directly, Trustor will promptly discharge any lien which has priority over this Deed of Trust; provided that Trustor will not be required to discharge the lien of the Deed of Trust securing any senior lender or any other lien described in this paragraph so long as Trustor will agree in writing to the payment of the obligation secured by such lien in a manner acceptable to the Beneficiary, or will, in good faith, contest such lien by, or defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement of the lien or forfeiture of the Security or any part thereof. 6. Hazard Insurance. Trustor will keep the Security insured by such insurance policies in such amounts and for such periods as called for in the Agreement. All insurance policies and renewals thereof will include a standard mortgagee clause with standard lender's endorsement in favor of the holder of any senior lender and the Beneficiary as their interests may appear and in a form acceptable to the Beneficiary. The Beneficiary shall have the right to hold, or cause its designated agent to hold, the policies and renewals thereof, and Trustor shall promptly furnish to the Beneficiary, or its designated agent, the original insurance policies or certificates of insurance, all renewal notices and all receipts of paid premiums subject to the rights of any senior lender. In the event of loss, Trustor will give prompt notice to the insurance carrier and the Beneficiary or its designated agent. The Beneficiary, or its designated agent, may make proof of loss if not made promptly by Trustor. The Beneficiary shall receive 30 days advance notice of cancellation of any insurance policies required under this Section. Unless the Beneficiary and Trustor otherwise agree in writing, insurance proceeds, subject to the rights of any senior lender, will be applied to restoration or repair of the Security damaged, provided such restoration or repair is economically feasible and the security of this Deed of Trust is not thereby impaired. If such restoration or repair is not economically feasible or if the security of this Deed of Trust would be impaired, again, subject to the rights of any senior lender, the insurance proceeds will be used to repay the loan secured by this Deed of Trust, with the excess, if any, paid to Trustor. If the Security is abandoned by Trustor, or if Trustor fails to respond to the Beneficiary, or its designated agent within 30 days from the date notice is mailed by either of them to Trustor that the insurance carrier offers to settle a claim for insurance benefits, the Beneficiary, or its designated agent, is authorized to collect and apply the insurance proceeds at the Beneficiary's option either to restoration or repair of the Security or to repay the loan. If the Security is acquired by the Beneficiary, all right, title and interest of Trustor in and to any insurance policy and in and to the proceeds thereof resulting from damage to the Security prior to the sale or acquisition will pass to the Beneficiary to the extent of the sums secured by this Deed of Trust immediately prior to such sale or acquisition subject to the rights of any senior lender. 7. Preservation and Maintenance of Security. Trustor will keep the Security in good repair and will not commit waste or permit impairment or deterioration of the Security. 8. Protection of the Beneficiary's Security. If Trustor fails to perforin the covenants and agreements contained in this Deed of Trust or if any action or proceeding is commenced which materially affects the Beneficiary's interest in the Security, including, but not limited to, default under the Deed of Trust securing any senior lender, eininent domain, insolvency, code enforcement, or arrangements or proceedings involving a bankrupt or decedent, then the Beneficiary, at the Beneficiary's option, upon notice to Trustor, may make such appearances, disburse such sums and take such action as it determines necessary to protect the Beneficiary's interest, including, but not limited to, disbursement of reasonable attorneys' fees and entry upon the Security to make repairs. Any amounts disbursed by the Beneficiary pursuant to this paragraph, with interest thereon, will become an indebtedness of Trustor secured by this Deed of Trust. Unless Trustor and the Beneficiary agree to other terms of payment, such amount will be payable upon notice from the Beneficiary to Trustor requesting payment thereof, and will bear interest from the date of disbursement at the rate payable from time to time on outstanding principal under the CDBG Promissory Note unless payment of interest at such rate would be contrary to applicable law, in which event such amounts will bear interest at the highest rate permissible under applicable law. Nothing contained in this paragraph will require the Beneficiary to insure any expense or take any action hereunder. 9. Inspection. The Beneficiary may make, or cause to be made, reasonable entries upon and inspections of the Security during normal business hours; provided that the Beneficiary will give Trustor reasonable notice of inspection. 10. Forbearance by the Beneficiary Not a Waiver. Any forbearance by the Beneficiary in exercising any right or remedy will not be a waiver of the exercise of any such right or remedy. The procurement of insurance or the payment of taxes or other liens or charges by the Beneficiary will not be a waiver of the Beneficiary's right to accelerate the maturity of the indebtedness secured by this Deed of Trust. 11. Remedies Cumulative. All remedies provided in this Deed of Trust are distinct and cumulative to any other right or remedy under this Deed of Trust or any other document, or afforded by law or equity, and may be exercised concurrently, independently or successively. 12. Successors and Assigns Bound. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the Beneficiary and Trustor subject to the provisions of this Deed of Trust. 13. Joint and Several Liability. All covenants and agreements of Trustor shall be joint and several. 14. Notice. Except for any notice required under applicable law to be given in another manner, (a) any notice to Trustor provided for in this City Deed of Trust will be given by certified mail, return receipt requested, addressed to Trustor at 1640 Sepulveda Blvd, Suite 425, Los Angeles, California, 90025 with a copy to Bank of America CDC Special Holding Company, Inc. Community Development Banlcing,MA1-225-02-02, 225 Franldin Street, Boston, MA 02110 and WCH Affordable XVIII, LLC Attn: Graham Espley-Jones, 151 Kahnus Drive, 9J5, Costa Mesa, CA 92626, (b) any notice to the Beneficiary will be given by certified mail, return receipt requested, to the Beneficiary at 20 Civic Center Plaza, P.O. Box 1988, Santa Ana, California 92702, Attention: Housing Manager, or at such other address as the Beneficiary may designate by notice to Trustor as provided above, and (c) to Trustee at 8121 E. Florence Avenue, Downey, California 90240. Notice shall be effective as of the date received as shown on the return receipt. 15. Governing Law. This Deed of Trust shall be governed by the laws of the State of California with venue in Orange County. 16. Severabilitv. In the event that any provision or clause of this Deed of Trust or the City Loan Note conflicts with applicable law, such conflict will not affect other provisions of this Deed of Trust or the CDBG Promissory Note which can be given effect without the conflicting provision, and to this end the provisions of the Deed of Trust and the City Loan Note are declared to be severable. 17. Cam tions. The captions and headings in this Deed of Trust are for convenience only and are not to be used to interpret or define the provisions hereof. 18. Default in Foreclosure; Remedies. Upon Trustor's breach of any covenant or agreement of Trustor in this Deed of Trust or the CDBG Promissory Note secured by this Deed of Trust, including, but not limited to, the covenants to pay, when due, any sums secured by this Deed of Trust, the Beneficiary may declare all sums secured by this Deed of Trust immediately due and payable by delivering to Trustor notice thereof specifying: (1) The breach; (2) the action required to cure such breach; (3) a date not less than 30 days from the date the notice is received by Trustor as shown on the return receipt, by which such breach is to be cured provided, however, that if such default is not reasonable susceptible to being cured within 30 days, Trustor shall have a reasonable period to cure the defect so long as Trustor is diligently prosecuting the cure to completion; and (4) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Deed of Trust and sale of the Security. The notice will also inform Trustor of Trustor's right to reinstate after acceleration and the right to bring a court action to assert the non-existence of default or any other defense of Trustor to acceleration and sale. Notwithstanding anything to the contrary contained herein, a "default" shall not include (i) a transfer of a general partner's interest in Trustor when made in connection with the exercise by the Trustor's limited partner (the "Limited Partner") of its rights upon a default by a general partner under the Truster's Amended and Restated Limited Partnership Agreement (the "Partnership Agreement") or upon a general partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting general partner is made within thirty (3 0) days of such default or, if such removal and substitution cannot reasonably be completed within thirty (3 0) days, so long as the Limited Partner commences to take action to remove and substitute the general partner with a reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the Property to the managing general partner of Trustor pursuant to the right of first refusal or to the general partners of Trustor pursuant to the purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest under and in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of a limited partner interest or an interest in a limited partner of the Trustor, (v) any sale, transfer or other disposition of an interest in a limited partner of the Borrower. If the breach is not cured on or before the date specified in the notice or such longer period as provided above or in the CDBG Promissory Note or the Agreement, the Beneficiary, at the Beneficiary's option, may: (a) declare all of the sums secured by this Deed of Trust to be immediately due and payable without further demand and may involve the power of sale and any other remedies permitted by California law; (b) either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its security, enter upon the Security and take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of the Trustee, and do any acts which it deems necessary or desirable to preserve the value or marketability of the Property, or part thereof or interest therein, increase the income therefrom or protect the security thereof. The entering upon and taking possession of the Security shall not cure or waive any breach hereunder or invalidate any act done in response to such breach and, notwithstanding the continuance in possession of the Security, the Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust, or by law upon occurrence of any uncured breach, including the right to exercise the power of sale; (c) commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof, (d) deliver to the Trustee a written declaration of default and demand for sale, pursuant to the provisions for notice of sale found at California Civil Code Sections 2924, et seq., as amended from time to time; or (e) exercise all other rights and remedies provided herein, in the instruments by which Trustor acquires title to any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or provided by law. In addition, if an Event of Default occurs hereunder or under the Note, prior to taking any remedy under this Deed of Trust or any other document evidencing or securing this Note, Beneficiary shall first give notice of the occurrence of such Event of Default to the Limited Partner and the Limited Partner shall have not less than 30 days to cure such Event of Default, provided if in order to cure such Event of Default the Limited Partner gives notice to the Beneficiary that Limited Partner must remove and replace the general partner or general partners of Trustor, Limited Partner shall have until 30 days following the effective date of such removal and replacement to cure such Event of Default. The Beneficiary shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph, including, but not limited to, reasonable attorneys' fees. 19. Trustor's Right to Reinstate. Notwithstanding the Beneficiary's acceleration of the sums secured by this Deed of Trust, Trustor will have the right to have any proceedings begun by the Beneficiary to enforce this Deed of Trust discontinued at any time prior to 5 days before sale of the Security pursuant to the power of sale contained in this Deed of Trust or at any time prior to entry of a judgment enforcing this Deed of Trust if: (a) Trustor pays the Beneficiary all sums which would be then due under this Deed of Trust and no acceleration under the CDBG Promissory Note has occurred; (b) Trustor cures all breaches of any other covenants or agreements of Trustor contained in this Deed of Trust; (c) Trustor pays all reasonable expenses incurred by the Beneficiary and the Trustee in enforcing the covenants and agreements of Trustor contained in this Deed of Trust and in enforcing the 'Beneficiary's and the Trustee's remedies, including, but not limited to, reasonable attorneys' fees; and (d) Trustor takes such action as the Beneficiary may reasonably require to assure that the lien of this Deed of Trust, the Beneficiary's interest in the Security and Trustor's obligation to pay the sums secured by this Deed of Trust shall continue unimpaired. Upon such payment and cure by Trustor, this Deed of Trust and the obligations secured hereby will remain in full force and effect as if no acceleration had occurred. 20. Acceptance by Trustee. Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party to this Deed of Trust of pending sale under any other deed of trust or any action or proceeding in which Trustor, Beneficiary, or Trustee shall be a party unless brought by Trustee. 21. Reconveyance. Upon payment of all sums secured by this Deed of Trust, the Beneficiary will request the Trustee to reconvey the Security and will surrender this Deed of Trust and the CDBG Promissory Note to the Trustee. The Trustee will reconvey the Security without warranty and without charge to the person or persons legally entitled thereto. Such person or persons will pay all costs of recordation, if any. 22. Substitute Trustee. The Beneficiary, at the Beneficiary's option, may from time to time remove the Trustee and appoint a successor trustee to any Trustee appointed hereunder. The successor trustee will succeed to all the title, power and duties conferred upon the Trustee herein and by applicable law. 23. Request for Notice. Trustor requests that copies of the notice of default and notice of sale be sent to Trustee at the address set forth in Section 14 above. 24. Nonrecourse Liability. Neither Trustor nor any partner of Trustor shall have any personal liability under the Agreement, CDBG Promissory Note, and this Deed of Trust and any judgment, decree or order for payment of money obtained in any action to enforce the obligation of Trustor to repay the loan evidenced by such documents shall be enforceable against Trustor only to the extent of Trustor's interest in the Property. (Signatures on Following Page) IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first written above. SANTA ANA ARTS COLLECTIVE, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, a California limited liability company, its general partner By: Kasey Burke, Vie-r-es'dent By: WCH Affordable XVIII, LLC, a California limited liability company, its managing general partner By: Graham P. Espley-Jones, President 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 Los Angeles On July 13, 2017 before me, Rutzel M. Castillo, Notary Public (insert name and title of the officer) personally appeared Kasey Burke 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 (Seal) . C� 8TILL0 Commistton • 2100460 Notary Po090-.CNilornia Las Anpl" Cax11y Comm. 19 2019+ IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first written above. SANTA ANA ARTS COLLECTIVE, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, a California limited liability company, its general partner IM Kasey Burke, Vice President By: WCH Affordable XVIII, LLC, a California limited liability company, its managing general partner By: /Ld Sandra Gibbons, Execs tive Vice President -/-CFO CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies onlythe 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 l County of Orange J} On July 13, 2017 Date personally appeared . before me, Leanne Truofreh, Notary Public Here Insert Name and Title of the Officer Sandra Gibbons Nome(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(¢) whose name($) is/are subscribed to the within instrument and acknowledged to me that lie/she/they executed the same in hls/her/4h air - authorized capacity(ies), and that by Ws/her/t+rdT signature(A on the instrument the person(o, or the entity upon behalf of which the person(O acted, executed the instrument. LEANNE TRUOFREH Commission # ?.064657 Za=gym"',; ;�,_�� Notary Public -California z z °'�'� Orange County n My Comm. Expires May 12, 2018 Ploce Notary Seal and/or Stamp Above 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 SignaturJofNotary blit Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: 1st Amended & Restated CDBG DOT DocumentDate: July 5, 2017 Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner— ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian of Conservator ❑ Other: Signer is Representing: 02017 National Notary Association Signer's Name: _ ❑ Corporate Officer — 11 Partner— ❑ Limiter ❑ Individual ❑ Trustee ❑ Other: Title(s): 1 ❑ General ❑ Attorney in Fact ❑ Guardian of Conservator Signer is Representing: Exhibit Fee CDBG Promissory Note FIRST AMENDED AND RESTATED CDBG FUNDS PROMISSORY NOTE SECURED BY SUBORDINATED DEED OF TRUST TO THE CITY OF SANTA ANA, CALIFORNIA (1666 N. Main Street) $500.000.00 July 5, 2017 Santa Ana, California 1. Principal Amount of Loan FOR VALUE RECEIVED, Santa Ana Arts Collective, LP, a limited partnership ("Borrower"), hereby promises to pay to the CITY OF SANTA ANA, a charter city and municipal corporation ("City"), or order, a principal amount not to exceed FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) or so much thereof as may be advanced by the City to the Borrower, due and payable with 3% interest by residual receipts over the fifty-five (55) year term, pursuant to the CDBG and Inclusionary Program Loan Agreement (said "Agreement') between Borrower and the City dated concurrently herewith, which are both incorporated herein by this reference. This loan is made pursuant to the "Housing Opportunity Ordinance hi -Lieu Fee Program" or "In -Lieu Fees" with money funded through the Program as "CDBG Funds". Any capitalized term not otherwise defined in this Note shall have the meaning ascribed to such term in the Agreement. The obligation of Borrower to City hereunder is subject to the terms of said Agreement, the Affordability Restrictions on Transfer of Property, Inclusionary Deed of Trust, Inclusionary Promissory Note, CDBG Deed of Trust and this Note. Said documents are public records on file in the offices of the City, and the provisions of said documents are incorporated herein by this reference. This Note, said Agreement, the Affordability Restrictions on Transfer of Property, Inclusionary Promissory Note, CDBG Deed of Trust and the Inclusionary Deed of Trust are sometimes collectively referred to herein as the "Loan Documents." The Loan Documents and the rights and responsibilities inure to the benefit of the City of Santa Ana. Any capitalized term which is not otherwise defined herein shall have the meaning ascribed to such term in the Agreement. This Note evidences the obligation of Borrower to the City for the repayment of the CDBG Loan of CDBG Funds attributable to the adaptive reuse and construction of the Property, and related soft costs. This Note is payable at the principal office of City of Santa Ana — Community Development Agency, 20 Civic Center Drive, Santa Ana, California 92702, Att: Housing Division, or at such other place as the holder hereof may inform Borrower in writing, in lawful money of the United States. 2. Definitions. For the purpose of calculating the payments to be made by Borrower to City pursuant to this Note, the following terms shall have the following respective meanings: "Agreement" means the Loan Agreement between the City and the Developer, and any attachments or amendments thereto. "AHSC Loan" means a permanent loan of Affordable Housing and Sustainable Communities program funds from HCD, awarded to and the sole responsibility of Borrower, administered by the California Strategic Growth Council in the amount of $4,944,130 "AHSC Deed of Trust" means the any deed(s) of trust securing the AHSC Loan encumbering the Property. "AHSC Documents" means, collectively, the loan agreement governing the AHSC, the AHSC Note, the AHSC Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the AHSC Loan. "Applicable Law" shall mean those federal, state and local laws, ordinances, regulations, policies and procedures applicable to the Community Development Block Grant Program, and the CDBG Funds. "Area Median Income" means the median income figures for Orange County as published by the U.S. Department of Housing and Urban Development (HUD). Also may be referred to as "AMI" herein. "Borrower" means Santa Ana Arts Collective, LP, a California limited partnership. "Calendar Year" means each consecutive twelve (12) month period from January I to December 30. "CDBG Loan" shall mean the loan evidenced by this Note repayable to the City in accordance with the terms of this Note and secured by the CDBG Deed of Trust. "City's Percentage" with reference to the Residual Receipts, shall mean aggregate percentage of thirty point thirteen percent (30.13%) of the total Residual Receipts from the Property, which shall be applied to the HOME Loan, CDBG Loan, and Inclusionary Loan, as further described in Section 5 hereof. "Closing Costs" shall mean: 2 W In the case of a Sale, reasonable brokerage commissions payable to a broker as a result of the Sale, which shall not in any event exceed the customary amount charged -for similar transactions in the immediate market place, costs of title insurance premiums, documentary stamp taxes, escrow fees, recording charges, loan repayment charges and other costs reasonably incurred with respect to the Property, in each case actually paid by Borrower as a condition of the Sale. (ii) In the case of a Refinancing, the reasonable and necessary costs of consumating such Refinancing, including, without limitation, loan fees, loan repayment charges, costs of title insurance premiums, escrow fees, recording fees and attorneys' fees. "CDBG Program" (CDBG) has the meaning set forth in the Recitals above. "Gross Revenues" shall mean all revenues and receipts of every kind actually received by Borrower from operating the Property, and all parts thereof, including, but not limited to, income from both cash and credit transactions, rental from leased and/or subleased spaces and parking fees and charges (but not including security deposits and other tenant deposits, except to the extent such deposits are forfeited to the Borrower under the tenant's lease). Gross Revenues also includes any casualty insurance proceeds in excess of those used to restore the Property and any rental interruption insurance proceeds. Borrower shall establish and maintain accounts for the Gross Revenues (the "'Project Accounts") that are segregated from revenues and income received by Borrower from all other projects. Gross Revenues shall also include all interest earned on the Project Accounts. Gross Revenues shall not include capital contribution and loan proceeds received by borrower from any source. "Operating Expenses" shall mean the sum of the following: (i) payments of principal and interest and all other charges relating to the Senior Loan(s); (ii) general partner fee and tax credit investor management fees pursuant to the Borrower's amended and restated partnership agreement ("Partnership Agreement"); (iii) the cost of any supportive services provided to tenants of the Property, including fees and reimbursements payable to the provider or coordinator of such supportive services; (iv) debt service payments (excluding debt service due from residual receipts or surplus cash of the Property) on senior loan obligations associated with the Property, and approved by Lender; (v) tax credit adjustment payments payable to Maker's tax credit investor pursuant to Borrower's Partnership Agreement; (vi) payments made on loans advanced by any partner or member of Borrower for the purpose of paying operating expenses of the Property; (viii) Owner Administration Fee of 5% of gross rents; (ix) deposits into required reserves; (x) any deferred developer fee; (xi) all other actual, reasonable cash operating costs and expenses, calculated on an annual basis, that are directly attributable to managing and operating the Property, including, without limiting the generality of the foregoing, the following: costs and expenses for real and personal property taxes, special assessments or similar charges; water, fuel, electricity and other utilities; heating, ventilation and air conditioning expenses; labor; supplies; tools; equipment; insurance; advertising and marketing; accounting and legal fees; brokerage commissions and other leasing expenses; reasonable reserves for all anticipated expenses as approved by the City; and other such items constituting operation, maintenance and repair costs actually paid by the Borrower, subject to the following conditions: (a) Depreciation and amortization expenses shall not be considered Operating Expenses, except as otherwise provided herein. (b) Any expenses, compensation or fees paid to any affiliate of Borrower shall only be included as Operating Expenses to the extent they are not in excess of the reasonable expenses, compensation or fees which would be payable to unrelated third parties in arms -length transactions for similar services in the Santa Ana, California area. (vii) Any other expenses necessary to meet senior lender requirements and requirements of Borrower's limited partner, or its assignee, as set forth in Borrower's Agreement of Limited Partnership (the "Partnership Agreement"). "CDBG Deed of Trust" shall mean the CDBG Deed of Trust in favor of the City, securing the CDBG Loan, substantially in the form attached to the Agreement as Exhibit E, which is incorporated herein by this reference. "Extremely Low Income" means an adjusted income which does not exceed thirty percent (30%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "Low Income" means an adjusted income which does not exceed eighty percent (80%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "CDBG Assisted Units" shall mean those rental units purchased and rehabilitated on Eligible Properties which are subject to the term of affordability. 4 "CDBG Funds" shall mean the money provided under the CDBG Program for the rehabilitation of the rental units hereunder. "Propert 'shall mean that property located at 1666N. Main Street, Santa Ana, California. "Refinancing" shall mean changing the then existing financing on the Property by, without limitation, modifying the interest rate and/or the term of the existing Senior Loan, increasing or reducing the amount of the existing Senior Loan, paying off the existing Senior Loan and obtaining new Senior Loan, except for the payoff of the conventional lender's acquisition loan for the Property. Notwithstanding the projected sale of the senior permanent loan on the Project to California Community Reinvestment Corporation (`CCRC") and any subsequent transfer of the loan in whole or in part by CCRC shall not be deemed a Refinancing for purposes hereof. "Refinancing Proceeds" shall be disbursed as set forth in Section 6 hereof. "Residual Receipts" shall mean the Gross Revenues from the Property for each year, less deductions for Operating Expenses from the same building, applicable to each such year to the extent not already deducted as an Operating Expense. "Sale" shall mean any transfer, assignment, or conveyance or lease of the Property or any portion thereof, or any interest therein by the Borrower, and includes any transfer, assignment or sale of any partnership interest in the Borrower by an individual or entity which is a general or limited partner in the Borrower, or any interest by any individual or entity which holds an interest in any such general or limited partner in the Borrower, which brings the cumulative total of all such direct and indirect transfers, assignments and sales during the term of this Note to more than thirty-five percent (35%) of the ownership interests in the Borrower, and any such transfer, assignment or sale of a direct or indirect partnership interest thereafter. Sale includes a sale in condemnation or under threat thereof. Sale does not include dedications and grants of easements to public and private utility companies of the kind customary in real estate development. Notwithstanding anything to the contrary contained herein, a "Sale" shall not include any transaction not considered a "transfer' under Section 13. "Senior Loan" shall mean any senior loan made to Borrower, for payment of acquisition and/or rehabilitation/construction costs, and shall include any subsequent loan that refinances said Senior Loan. "Term" the term for repayment of this Note shall mean fifty-five (55) years from the date of recording of the loan from the State of California Department of Housing and Community Development to Borrower, but in no event shall the Term end later than July 1, 2075. "Term of Affordability" the term of affordability shall be fifty-five (55) years. "Very Low Income" means an adjusted income which does not exceed fifty percent (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. 3. Loan Repayment. Borrower shall make payments to the City as provided in Sections 5 (Residual Receipts), 6 (Refinancing Proceeds), 7 (Sale Proceeds) and 9 (Accelerated Loan Repayment) of the Agreement. 4. Operating Capital Improvement Loan. If the replacement reserve account ("reserves") is depleted due to unforeseen repairs and the General Partner makes a loan to the Partnership, the reserves must be fully funded prior to payment of said loan. The outstanding loan balance will be reflected in the annual report. 5. Annual Loan Repayment/ Residual Receipts. a. Commencing on the date one hundred fifty (15 0) days after the close of the initial Calendar Year following the issuance of the Certificate of Completion and on or before the 150' day of each Calendar Year thereafter the Borrower shall thereafter make a loan payment to the City annually, in the amount of the lesser of the outstanding balance due under this Note or the City's Percentage of the Residual Receipts, as provided in this Section 5. b. Within one hundred fifty (150) days after the close of the initial Calendar Year following the Issuance of the Certificate of Completion and on or before the 150th day of each Calendar Year thereafter, the Borrower shall submit to the City an audited financial statement of Gross Revenues and Operating Expenses attributable to the Property for the applicable Calendar Year, along with a computation of the amount of the Residual Receipts applicable to such Calendar Year with which to make a City Loan payment then due. c. Except as otherwise provided, the Borrower shall pay to the City the City's Percentage of the Residual Receipts as payment interest and then to principal. At least fifty percent (50%) of the Residual Receipts shall remain with the Borrower, with all Residual Receipts remaining with Borrower to the extent the City Loan has been fully repaid. d. Borrower shall retain fifty percent of the Residual Receipts. The other fifty percent shall be divided according to the table below: SOURCE PERCENTAGE CDBG Loan 2.01% HOME Loan 8.92% Inclusionary Housing Loan 19.20% State of California Housing and Community Development Affordable Housing Loan 19.87% TOTAL 50.00% As Borrower repays its loans, the payment percentage applied to the remaining loans shall increase. e. The Residual Receipts payment shall be made not later than one hundred fifty (150) days after the close of the Calendar Year. Such payment shall be applied first to any late fees, then to reduce the interest and then the principal balance of the loan. 6. Loan Repayment from Re6nancinn Proceeds. The Borrower shall make a loan payment to the City from every Refinancing that occurs during the term of this Note (other than refinancing of the conventional lender acquisition and construction loan) not to exceed the outstanding balance of principal on this Note, to the extent of the City's Percentage of the Refinancing Proceeds (if any), as follows: the cash proceeds from such Refinancing shall be applied first to pay Closing Costs; next, the amount necessary to pay in full the balance remaining on the Senior Loan and AHSC Loan; next, the amount necessary to pay any deferred developer fee in full; and next, the Borrower shall pay to the City the City's Percentage of the Refinancing Proceeds to the extent of the outstanding balance on this Note. At least fifty percent (50%) of the Refinancing proceeds shall remain with Borrower, with all remaining Refinancing proceeds remaining with the Developer to the extent the outstanding balance of the Note has been fully paid. Such payment shall be due on the date of such Refinancing, and shall be applied to reduce the interest and then principal balance of the Loan. The City shall not be required to reconvey the lien of the Deed of Trust if Refinancing Proceeds are insufficient to repay the Loan in full. Loan Repayment from Sale Proceeds. The Borrower shall make a loan payment, not to exceed the outstanding balance of principal on this Note subject to Section 14 herein, to the City from any Sale that occurs during the term of the City Loan, to the extent of the City's Percentage of the Sale Proceeds, as follows: gross sale proceeds are applied first to pay Closing Costs, next to pay in full the balance remaining on the Senior Loan and AHSC Loan; next, the amount necessary to pay any deferred developer fee in full; and next, the Borrower shall pay to the City the City's Percentage of the total Sale Proceeds, not to exceed the outstanding amount of principal due on this Note. At least fifty percent (50%) of the Sale Proceeds shall remain with Borrower, with all remaining Refinancing proceeds remaining with the Developer to the extent the outstanding balance of the Note has been fully paid. Such payment shall be due on the date of such Sale, and shall be applied to reduce the interest and principal balance of the Loan. The City shall not be required to reconvey the lien of the Deed of Trust if Sale Proceeds are insufficient to repay the Loan in full. 8. Accelerated Loan Pavment. The full principal amount outstanding shall be due and payable on the earlier to occur of the following: a. Sale or Refinancing of the Property as provided further in Section 13 hereof; unless: (i) in the case of a Sale in which the Sale Proceeds are insufficient to repay in full the City Loan, the City approves such sale in the exercise of its reasonable discretion and the purchaser assumes the balance of the City Loan in accordance with the terms of this Note; or (ii) in the case of a Refinancing in which the Refinancing Proceeds are insufficient to repay in full the City Loan, the City approves such Refinancing in the exercise of its reasonable discretion and the Borrower remains obligated pursuant to the terms of this Note. b. In event of default (subject to any applicable notice and cure provisions) pursuant to any of the Loan Documents or the AHSC Loan Documents. c. Any default (subject to any applicable notice and cure provisions) by Borrower as to any other loan or loans by City to Borrower with respect to the Property; or d. The expiration of the Term of this Note. On that date, the City agrees to review the performance of the Property and consider in good faith any reasonable request by Borrower to modify the terms or extend the Term of this City Note. 9. Prepayment Borrower may prepay the outstanding principal balance under this Note, in whole or in part, at any time without penalty, however the Affordability Covenants and Restrictions still remain for the entire Affordability Period of fifty-five (55) years. 10. Lawful Money. Principal is payable in lawful money of the United States of America. 11. Application of Payments; Late Charges. a. Any payments received by the City pursuant to the terms hereof shall be applied first to sums, other than principal, due the City pursuant to this Note, and the balance, if any, to the payment of principal. b. If any payment is not received by the City within fifteen (15) Business Days after Developer's receipt of written notice that such payment was not received when due; then in addition to the remedies conferred upon the City pursuant to this Note and the other Loan Documents, (i) a late charge of four percent (4%) of the amount due and unpaid will be added to the delinquent amount to compensate the City for the expense of handling the delinquency and (ii) the amount due and unpaid, excluding the late charge, shall bear interest at the highest annual rate which may lawfully be charged and collected under applicable law on the obligation evidenced by this Note, computed from the date on which the amount was due and payable until paid. Without prejudice to the rights of the City hereunder or under any of the other Loan Documents, Borrower shall indemnify the City against, and shall pay the City on demand, any expense or loss which it may sustain or incur as a result of the failure by Borrower to pay when due any installment of principal, fees, or other amounts payable to the City under this Note or any other Loan Document, to the extent that any such expense or loss is not recovered pursuant to such foregoing provisions. A certificate of the City setting forth the basis for the determination of the amounts necessary to indemnify the City in respect of such expenses or direct loss, submitted to Borrower by the City, shall be conclusive and binding for all purposes except as immediately corrected by Borrower notice to City. 12. Securi This Note is secured by the recorded Deed of Trust. 13. Acceleration by Reason of Transfer or Financing. a. In order to induce City to make the loan evidenced hereby, Borrower agrees that in the event of any transfer of the Property without the prior written consent of City (other than a transfer resulting from a foreclosure, or conveyance by deed in lieu of foreclosure, by the holder of the Senior Loan Deed of Trust or the AHSC Deed of Trust), City shall have the absolute right at its option, without prior demand or notice, to declare all sums secured hereby immediately due and payable. Consent to one such transaction shall not be deemed to be a waiver of the right to require consent to future or successive transactions. City may grant or deny such consent in its sole discretion and, if consent should be given, any such transfer shall be subject to this Section 13, and any such transferee shall assume all obligations hereunder and agree to be bound by all provisions contained herein. Such assumption shall not, however, release Borrower from any liability thereunder without the prior written consent of City. b. As used herein, "transfer" includes the Sale, agreement to sell, transfer or conveyance of the Property, or any portion thereof or interest therein, whether voluntary, involuntary, by operation of law or otherwise, the execution of any installment land sale contract or similar instrument affecting all or a portion of the Property, or the lease of all or substantially all of the Property. 'Transfer' shall not include the leasing of individual residential units on the Property, so long as Borrower complies with the provisions of the Loan Agreement and the Affordability Covenants and Restrictions relating to such leasing activity, nor shall it include a conveyance of the Property to a limited partnership in which Borrower is a general partner, or to a corporation or limited liability company that is wholly owned by the Borrower or its affiliates and that is formed for the sole purpose of owning and operating the Property, or the sale back to the Borrower. In the event of any Refinancing or partial Refinancing in an amount in excess of the balance of the Senior Loan and AHSC Loan, without the prior written consent of City (which consent City may grant or deny in its sole discretion), then the entire outstanding balance of the City Loan shall be repaid to the City at the time of each Refinancing or partial Refinancing. c. Notwithstanding anything to the contrary contained herein, a "transfer" shall not include (and it shall not be deemed a Sale) (i) a transfer of a general partner's interest in Borrower when made in connection with the exercise by the Borrower's limited partner (the "Limited Partner") of its rights upon a default by a general partner under the Borrower's partnership agreement (the "Partnership Agreement") or upon a general partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting general partner is made within thirty (30) days of such default or, if such removal and substitution cannot reasonably be completed within thirty (30) days, so long as the Limited Partner commences to take action to remove and substitute the general partner with a reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the Property to the managing general partner of Borrower pursuant to the right of first refusal or to the general partners of Borrower pursuant to the purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest under and in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of an interest in a limited partner of the Borrower. 14. Event of Default. Subject to the provisions of Section 23 hereof, the occurrence of any of the following shall be deemed to be an event of default ("Event of Default") hereunder: (a) failure by Borrower to make any payments provided for herein, and if such default is not made good within fifteen (15) Business Days after Developer's receipt of written notice that such payment was not received when due; or (b) failure by Borrower to perform any covenant or agreement in the Deed of Trust, the Agreement, or the Affordability Covenants and Restrictions within thirty (30) days after written demand therefor by City (or, in the event that more than thirty (30) days is reasonably required to cure such default, should Borrower fail to promptly commence such cure, and diligently and continuously prosecute same to completion). 15. Remedies. Upon the occurrence of an Event of Default, after any applicable notice has been provided and the expiration of any applicable cure period therefore and subject to the provisions of Section 21 hereof, City may declare all sums evidenced hereby immediately due and payable by delivery to the Trustee named in the Deed of Trust securing this Note, and to Borrower, written declaration of default and demand for sale, and written notice of default and of election to cause the Property to be sold, which notice Trustee shall cause to be duly filed for record and City may foreclose on the Deed of Trust. City shall also deposit with Trustee the Deed of Trust, this Note and all documents evidencing expenditures secured thereby and evidenced hereby. Upon the occurrence of an Event of Default (and so long as such Event of Default shall continue), the entire balance of principal shall bear interest at the Bank of America reference rate on the due date of the delinquent payment plus four percent (A%). No delay or omission on the part of the City in exercising any right under this Note or under any of the other Loan Documents shall operate as a waiver of such right. 16. Attorney Fees. If this City Promissory Note is not paid when due or if any Event of Default occurs, Borrower promises to pay all costs of enforcement and collection, including but not limited to, 10 reasonable attorneys' fees, whether or not any action or proceeding is brought to enforce the provisions hereof. 17. Severability. Every provision of this Note is intended to be severable. In the event any term or provision hereof is declared by a court of competent jurisdiction, to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable. 18. Number and Gender. In this Note the singular shall include the plural and the masculine shall include the feminine and neuter gender, and vice versa, if the context so requires. 19. Non-recourse. The City Loan is a nonrecourse obligation of the Borrower. Neither Borrower, nor its partners nor any other party shall have any personal liability for repayment of the City Loan or for any other amounts under any of the documentation evidencing, securing or describing the City Loan. The sole recourse of City under this Note and the Deed of Trust for repayment of the City Loan and for such other amounts arising therefrom shall be the exercise of its rights against the Property and related security thereunder. 20. Subordination. It is hereby expressly agreed and acknowledged by Borrower and City that the Deed of Trust is a subordinate deed of trust, and that this Note is subject and subordinate to any Senior Deed of Trust. 21. Notice of Default. a. Subject to the applicable cure periods set forth in Section 14 and subject to the further provisions of this Section 21, failure or delay by the Borrower to perform any term or provision of this Note constitutes a default under this Note. The Borrower must immediately commence to cure, correct, or remedy such failure or delay and shall complete such cure, correction or remedy with reasonable diligence. b. The City shall give written notice of default to the Borrower specifying the default complained of by the City. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. c. Except in the case of a monetary event of default, the Borrower shall not be in default so long as it endeavors to complete such cure, correction or remedy with reasonable diligence, provided such cure, correction or remedy is completed within the applicable time period set forth 11 herein after receipt of written notice (or such additional time as may be deemed by the City to be reasonably necessary to correct the default). d. Any failures or delays by the City in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by the City in asserting any of its rights and remedies shall not deprive the City of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert, or enforce any such rights or remedies. e. If a monetary event of default occurs under the terms of this Note or the Deed of Trust, prior to exercising any remedies thereunder City shall give Borrower written notice of such default. Borrower shall have a period of fifteen (15 Business Days after such notice is received within which to cure the default prior to exercise of remedies by City under this Note and the Deed of Trust. f. If a non -monetary event of default occurs under the terms of this Note or the Deed of Trust, prior to exercising any remedies thereunder, City shall give Borrower notice of such default. If the default is reasonably capable of being cured within thirty (30) days, Borrower shall have such period to effect a cure prior to exercise of remedies by the City under this Note and the Deed of Trust. If the default is such that it is not reasonably capable of being cured within thirty (30) days, and Borrower (i) initiates corrective action within said period, and (ii) diligently, continually, and in good faith works to effect a cure as soon as possible, then borrower shall have such additional time as is reasonably necessary to cure the default prior to exercise of any remedies by City. In no event shall City be precluded from exercising remedies if its security becomes or is about to become materially jeopardized by any failure to cure a default or the default is not cured within one hundred eighty (18 0) days after the first notice of default is given. g. In addition, if an Event of Default occurs hereunder, prior to taking any remedy under this Note or any other document evidencing or securing this Note, City shall first give notice of the occurrence of such Event of Default to the Limited Partner and the Limited Partner shall have not less than 30 days to cure such Event of Default, provided if in order to cure such Event of Default the Limited Partner gives notice to the City that Limited Partner must remove and replace the general partner or general partners of Borrower, Limited Partner shall have until 30 days following the effective date of such removal and replacement to cure such Event of Default. 22. Insurance and Condemnation. In the event of any fire or other casualty to the Property or eminent domain proceedings resulting in condemnation of the Property or any part thereof, Borrower shall have the right to rebuild the Property, and to use all available insurance or condemnation proceeds therefor, provided that (a) such proceeds are sufficient to keep the City Loan in balance and rebuild the Property in a manner that provides adequate security to City for repayment of the City Loan or if such proceeds are insufficient then Borrower shall have funded any deficiency, (b) City 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 12 or similar arrangement, and (c) no material default then exists under this Note or the Deed of Trust. If the casualty or condemnation affects only part of the Property and total rebuilding is infeasible, then proceeds may be used for partial rebuilding and partial repayment of the City Loan in a manner that provides adequate security for repayment of the remaining balance of the City Loan. 23. Force Majeure. Notwithstanding specific provisions of this Note, performance hereunder shall not be deemed to be in default where delays or defaults are due to: war; insurrection; strikes; lock -outs; riots; floods; earthquakes; fires; casualties; acts of God or other deities; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor or supplier; acts of the other party; acts or failure to act of the City or any other public or governmental City or entity (except that any act or failure to act of City shall not excuse performance by City); or any other causes beyond the reasonable control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time the party claiming such extension gives notice to the other party, provided notice by the party claiming such extension is given within thirty (30) days after the commencement of the cause. Times of performance under this Note may also be extended in writing by the City and the Borrower. 24. Assignments. The City, and the assignee of the City, shall have the right to assign this Note and the Deed of Trust securing this Note, without any further act of Borrower. The assignee shall give notice to Borrower as soon as practicable after such assigriment. 13 This City Promissory Note is hereby agreed to and executed on the date first set forth above. SANTA ANA ARTS COLLECTIVE, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, a California limited liability company, its general partner By: Kasey Burke, Vice Pres ent By: WCH Affordable XVIII, LLC, a California limited liability company, its managing general partner 0 Graham P. Espley-Jones, President 14 This City Promissory Note is hereby agreed to and executed on the date first set forth above. SANTA ANA ARTS COLLECTIVE, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, a California limited liability company, its general partner Kasey Burke, Vice President By: WCH Affordable XVIII, LLC, a California limited liability company, its managing general partner By: Sandra Gibbons, Exec ve Vice President / CFO 14 Exhibit Go. Project Budget ACQUISITION ®®®®®®®® Qom- PELOOATIDN coNsiPUVTIox S�m�® 'ARCryITEGTURpL _ SURVEY& ENGINEERING CONTINGENCY cos®��_� '� ' CONSTRUCTION EXPENSES PERIOD PP GMANENTFINANI�� (LEGAL FEES •fie •���� ' ® ® • CppITpNZEO REGEpYEB gEPORi$85TUDIEB OTHER _ � X��®� MM�MMMI iOEVELOPEpCOsi9 Exhibit He. Scope of Work /Schedule of EXHIBIT H SCOPE OF WORK & SCHEDULE OF PERFORMANCE I. SCOPE OF DEVELOPMENT: The property address of the site subject to this agreement is 1666 North Main Street, at the signalized intersection of 17th Street and Main Street, in the Midtown Specific Plan Zoning District (SP -3). The development site consists of two parcels held as one, of 48,399 square feet total (or 1.11 acres). The development site is currently improved with a five -story office building, one level of subterranean parking, and approximately 0.5 acre of surface parking. The office building was built in 1968 and has 62,724 rentable square feet. In November 2014, the Santa Ana City Council approved an adaptive reuse ordinance, which provides alternative building and fire standards in order to convert non-residential buildings built before 1974 into dwelling units, guest rooms or joint living and work quarters. 1666 North Main Street qualifies for this ordinance because of the building's age, non-residential use, and location in the Midtown Specific Plan Zoning District. The development is a fifty-eight (58) unit affordable housing development that would adaptively reuse the five -story office building as forty-eight (48) residential flats, and newly construct ten (10) additional residential lofts, townhomes, and flats on the office building's former surface parking area. A mix of twenty-six (26) 1 -bedroom, fifteen (15) 2 -bedroom, and seventeen (17) 3 -bedroom units will be spread throughout the adaptively reused office building and ground -level new construction. Building heights range from two (2) stories in the former surface parking areas to five (5) stories in the adaptively reused building. An existing subterranean parking garage will be restriped for 113 parking spaces. Parking will be accessed via the existing drive aisle from North Sycamore Street to the west. The 1968 office building is constructed of reinforced concrete panels with tinted window panels, in the international style of architecture, which has its roots in the modernist design movement of the twentieth century. The new development would preserve the former office building's clean, contemporary lines and add new, modern lofts and townhomes to complement the character of the office building and more broadly Midtown. To complement and sustain the proposed artist concept, Meta Housing Corporation has included approximately 5,992 square feet of community space distributed throughout the development. That space is proposed to be allocated to the following uses: a community art gallery, art garden, maker spaces, music room, rehearsal room, community room with community kitchen, computer room, property management office, services office, common laundry facility, a courtyard, and tot lot. The approximate 1300 square foot community art gallery, art garden, and maker spaces will be located on North Main Street. II. SCHEDULE OF PERFORMANCE: A. GENERAL 1. Insurance. Developer shall furnish or cause to be furnished As a Condition Precedent to appropriate certificates of insurance and/or endorsements to disbursement of any portion of City which meet all requirements of the Agreement. the loan, but no later than ten days after close of escrow. B. PROJECT FINANCING Submission of Evidence of Financing. Developer shall submit Not later than thirty (30) days to City evidence of financing for the Project after allocation of tax credit financing by CTCAC. 2. Receipt of All Funding Connnitments Necessary to Complete Not later than thirty (30) days Construction of the Improvements. Developer shall use its best before Construction Close. and good faith efforts to secure irrevocable funding commitments from TCAC, Senior Lender, and other available funding sources which when combined with the Loans shall equal no less than the total cost to construct the Improvements, as set forth in the approved Project Budget. Developer shall submit such commitments to City for review. 3. Approval of Developer's Evidence of Financing. City must approve Developer's evidence of financing as required by the Agreement. C. CONSTRUCTION OF IMPROVEMENTS Design Development Drawings. Developer shall prepare and submit Design Development Drawings to City for review and approval. 2. Approval of Design Development Drawings. City Housing staff shall review and approve, approve with conditions, or disapprove the Design Development Drawings. Not later than twenty (20) business days after receipt of a. complete submittal from Developer Within seven (7) months following the date of the Loan Agreement. Within fourteen (14) days of Developer's complete submittal of the Design Development Drawings. 3. Revision to Design Development Drawings. Developer shall Within fourteen (14) days of revise and resubmit Design Development Drawings to conditional approval or address conditions or disapproval to the satisfaction of City. disapproval, subject to extension based upon extent of revisions requested. 4. Management Plan. Developer shall submit its proposed Not later than twenty (20) Management Plan to City for review and approval. business days after receipt of a complete submittal from Developer 5. Approval of Management Plan. City shall review and approve, Within fourteen (14) days of approve with conditions, or disapprove the Management Plan. receipt of a complete submittal from Developer. 6. Revision to Management Plan. Developer shall revise Within fourteen (14) days of Management Plan if conditionally approved or disapproved by receipt of disapproved City. Management Plan from City. 7. Approval of Revised Management Plan. City shall review and Within fourteen (14) days of approve, approve with conditions, or disapprove revised receipt of a complete submittal Management Plan. of revised Management Plan from Developer, but not later than 120 days prior to project completion. 8. Progress Payments. During construction Developer shall Commencing thirty (30) days prepare monthly written progress reports and submit to City after start of the Construction Manager. work through completion. 9. Commencement of Construction of the Improvements. No later than July 28, 2017 Developer shall cause the Construction of the Improvements to be commenced by Contractor. 10. Completion of Construction of the Improvements. Developer shall complete all work of the Construction of the Improvements. 11. Release of Construction Covenants. City to furnish Developer with a Release of Construction Covenants. On or before November 1, 2018 (subject to extension by City based upon substantial progress toward completion of construction by Developer). Within thirty (30) days of receipt of Developer request and only after Developer' s satisfactory completion of the Construction of the hmprovements. The Schedule of Performance is subject to revision from time to time as mutually agreed upon in writing between Developer and the City Manager or his/her designee ("City Manager"), and City Manager is authorized on behalf of City to agree to make such revisions as he deems reasonably necessary. The City Manager, in his/her sole discretion, may elect to bring to the City Council for consideration and action any modifications to this Schedule of Performance. It is understood that the Schedule of Performance is subject to all of the telms and conditions set forth in the text of the Agreement. The summary of the items of perfolmance in the Schedule of Performance is not intended to supersede or modify the more complete description in the text of the Agreement; in the event of any inconsistency between the Schedule of Performance and the text of the Agreement, the text shall govern. hi the event the City Manager deems it necessary to bring to City Council for consideration one or more modifications to this Schedule of Performance, the discretion to do so is expressly reserved to the City Manager. The time periods set fol lh herein for City approval of plans and drawings and other submittals that are submitted to City by Developer shall only apply and commence upon Developer' s complete submittal of all the required information. In no event shall an incomplete submittal by Developer trigger any City obligations of review and/or approval hereunder; provided, however, that City shall notify Developer of an incomplete submittal as soon as is practicable and in no event later than the applicable time set forth for City action on the particular item in question. If any of the foregoing performance measurements are not met then it will be deemed a default as defined in Section 20 and any remedies shall be cured according to said Section of the Agreement. Exhibit I: Form of Residual Receipts RTo EXHIBIT I FORM OF RESIDUAL RECEIPTS REPORT Community Development Agency of the City of Santa Ana Residual Receipts Report for the Year Ending, Date Prepared Please complete the following information and execute the certification at the bottom of this form. Please report Annual Project Revenue for the year ending 01 Rent Payments (including Section 8 tenant assistance payments, if any) Interest Income (do not include interest income from replacement and operating reserves nor interest income on tenant security deposits) Additional Income (for example, vending machine income, tenant forfeited deposits, laundry income not paid to the residents' association) Total Annual Project Revenue (Add lines 1, 2, and 3) Operating Expenses' Please report Operating Expenses incurred for the year ending _ on the following lines: Operating and Maintenance Expenses Utilities Property Management Expenses and On -Site Staff Payroll Administrative Expenses Property Taxes Insurance the following lines: (1) $'— (2) $— (3) $'— (4) $ (5) $ (6) $ Other Expenses Please list these expenses: Total Annual Operating Expenses for the Housing Project (Add lines 5, 6, 7, 8, 9, 10, and 11) Net Operating Income (Subtract Line 12 from Line 4) Do not include expense unrelated to the operation ofthe Rental Portion of the Project, such as depreciation, amortization, accrued principal and interest expense on deferred payment debt, or capital expenditures. Additional Cash Flow Payments Obligated First Mortgage Debt Service Payments (as approved by the Agency and other parties that may have such approval rights) and Obligated Secondary Subordinate Debt Service Payments (as approved by the Agency and other parties that may have such approval rights) Scheduled Deposits to Reserves (as approved by the Agency) Additional Payment Obligations (such as partnership management fees, deferred developer fees, or repayments on loans to partners, as approved by the Agency to have priority over Residual Receipt Payment to the Agency) Total Additional Cash Flow Payments (Add lines 14, 15, and 16) Residual Receipts for Year Ending (Subtract Line 17 from Line 13) Percentage of Residual Receipts to be Paid to the Agency (as shown in the Promissory Note by and between the Agency and Borrower dated Amount Payable to the Agency (Multiply Line 18 by Line 19) (12) (13) (14) $ The amount payable to the Agency listed on Line 20 is subject to payment according to the terms of the Promissory Note by and between the Agency and Borrower dated . If Line 20 is $0.00 or negative, you owe nothing to the Agency this year. If Line 20 is a positive number, remit check payable to and attach to this report. RECORDING REQUBSTBD BY FIRSTAMERICAN TITLE INSURANCE CO, NATIONAL COMMERCIAL SERVICES 1JCg- "1013431- SAI FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana Clerk of the Council 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Attention: Clerk of the Council /�-Z,017-j 7.3 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII [[IIIIIIIIIIIIIIIIIII IIIIIIIII NO FEE *$ R 0 0 0 9 4 4 2 a 0 5$* 20170003083613:25 PM 07126117 7 405 R29 22 - 0.00 0.00 0.00 0.00 63.00 0.00 0.00 0.00 O.fi'i3.Gd.L'V ALs FIRST AMENDED AND RESTATED AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY (Address: 1666 N. Main Street, Santa Ana, CA) THESE AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY (the "Restrictions") are entered into by and between Santa Ana Arts Collective, LP, a California limited partnership ("Owner") and the City of Santa Ana, a charter city and municipal corporation (the "City") hereby amends and restates the original unrecorded Affordability Restrictions on Transfer of Property executed May I, 2016. RECITALS: A, The City is the recipient of Community Development Block Grant ("CDBG") funds from HUD pursuant to Title I of the Housing and Community Development Act of 1974, as amended ("Act") and 24 CFR 570 ("CDBG Regulations") , Catalog of Federal Domestic Assistance (CFDA) Number 14.218, and Federal Award Identification Number (FAIN) B -15 - MC -06-0508 in the amount of $5,434,375. B. The City is authorized by the CDBG Regulations to expend funds to increase the supply of low- and moderate -income housing available at affordable housing costs. C. The Housing Opportunity Ordinance, Santa Ana Ordinance No. NS -2881, established standards and procedures to encourage the development of housing that is affordable to a range of households with varying income levels. Pursuant to Santa Ana Municipal Code ("SAMC") section 41-1904(c), developers may pay an in -lieu fee in certain instances to satisfy the inclusionary requirements. These funds are deposited into the Inclusionary Housing Fund, as defined by SAMC section 41-1901, and are to be used to increase and improve the supply of affordable housing per SAMC section 41-1909, D, In order to utilize money in the Inclusionary Housing Fund, the City issued a Request for Proposals on June I, 2015, seeking affordable housing projects. After reviewing all THIS DOCUMENT WAS SIGNED IN COUNTERPART ONE RETCORDABLLE DOCUMENT i RECORDING REQUESTED BY FIRST AMERICAN TITLE INSURANCE CO. NATIONAL COMMERCIAL SERVICES SCS -101$431 SA1 FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana Clerk of the Council 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Attention: Clerk of the Council FIRST AMENDED AND RESTATED AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY {Address: 1666 N. Main Street, Santa Ana, CA} THESE AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY (the "Restrictions") are entered into by and between Santa Ana Arps Collective, UP, a California limited partnership ("Owner") and the City of Santa Ana, a charter city and municipal corporation (the "City") hereby amends and restates the original unrecorded Affordability Restrictions on Transfer of Property executed May 1, 2016. RECITALS: A. The City is the recipient of Community Development Block Grant ("CDBG") funds from HUD pursuant to Title I of the Housing and Community Development Act of 1974, as amended ("Act") and 24 CFR 570 ("CDBG Regulations") , Catalog of Federal Domestic Assistance (CFDA) Number 14.218, and Federal Award Identification Number (FAIN) B -15 - MC -06-0508 in the amount of $5,434,375. B. The City is authorized by the CDBG Regulations to expend funds to increase the supply of low- and moderate -income housing available at affordable housing costs. C. The Housing Opportunity Ordinance, Santa Ana Ordinance No. NS -2881, established standards and procedures to encourage the development of housing that is affordable to a range of households with varying income levels. Pursuant to Santa Ana Municipal Code ("SAMC") section 41-1904(c), developers may pay an in -lieu fee in certain instances to satisfy the inclusionary requirements. These funds are deposited into the Inclusionary Housing Fund, as defined by SAMC section 41-1901, and are to be used to increase and improve the supply of affordable housing per SAMC section 41-1909. D. In order to utilize money in the Inclusionary Housing Fund, the City issued a Request for Proposals on June 1, 2015, seeking affordable housing projects. After reviewing all THIS DOCUMENTWAS SIGNED IN COUNTERPART AND IS TO BE ONE RECORDABLE CONSIDERED OCUMENT applications, the Developer's project was selected and approved for funding by the Santa Ana City Council on November 3, 2015. E. Developer is entering into this agreement to acquire and, subject to entitlement approvals, develop an adaptive reuse project consisting of a fifty-eight (58) unit multi -family residential housing development, with live/work units and a possible commercial are studio, as well as a community room (the "Project") located at 1666 N. Main Street, within the City of Santa Ana, California, and legally described in Exhibit A attached hereto (the "Property"). The CDBG funds referenced herein shall assist in the rehabilitation only and the Inclusionary Housing funds will assist in the construction and soft costs of said Project. F. In furtherance of the Inclusionary Housing Program and CDBG guidelines, Developer has applied to the City for a loan with which to: 1. provide deeper affordability and construct the improvements to the Property, and 2. thereafter to maintain, operate and professionally manage the Project as decent, safe, sanitary and affordable rental housing. G. The City, on certain terms and conditions, desires to make such loan ("City Loan") to Developer in order to make possible the rehabilitation and construction of the Project, thereby expanding the supply of decent, safe, sanitary and affordable housing. H. If there is any inconsistency between Federal, State, and local guidelines with regard to any of the terms and conditions contained herein, the more stringent shall apply. 1. Owner and the City are concurrently entering into that certain CDBG and Inclusionary Housing Loan Agreement. The Loan Agreement, CDBG Deed of Trust, CDBG Promissory Note, Inclusionary Deed of Trust, and Inclusionary 'Promissory Note, dated concurrently herewith (collectively the "Loan Agreements") are entered into for the purpose of providing for affordable very low income residential rental units in the City of Santa Ana pursuant to the CDBG and Inclusionary Funds regulations and guidance. NOW, THEREFORE, CITY AND OWNER COVENANT AND AGREE AS FOLLOWS: 1. Definitions "AHSC Loan" means a permanent loan of Affordable Housing and Sustainable Communities program funds from HCD administered by the California Strategic Growth Council in the amount of $4,944,130 "AHSC Beed of Trust" means any deed(s) of trust securing the AHSC Loan encumbering the Property. "AHSC Loan Documents" means, collectively, the loan agreement governing the AHSC, the AHSC Note, the AHSC Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the AHSC Loan. "Affordable Housing" means housing operated in accordance with the requirements of 24 CFR 570. "Affordable Rent" means the monthly rents which do not exceed the maximum amount applicable to Extremely Low, Very Low and Low Income households, as promulgated by the U.S. Department of Housing and Urban Development (HUD), or by the California Tax Credit Allocation Committee, as applicable. "Agreement" means this Affordability Restrictions on Transfer of Property between the City and the Owner affecting real property. "AHSC Loan" means a permanent loan of Affordable Housing and Sustainable Communities program funds from HCD, awarded to and the sole responsibility of Borrower, administered by the California Strategic Growth Council in the amount of $4,944,130 "AHSC Deed of Trust" means the any deed(s) of trust securing the AHSC Loan encumbering the Property. "AHSC Documents" means, collectively, the loan agreement governing the AHSC, the AHSC Note, the AHSC Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the AHSC Loan. "Applicable Law" shall mean those federal, state and local laws, ordinances, regulations, policies and procedures applicable to the CDBG Funds and Inclusionary Funds. "Building Permit" means the building permit(s) issued by City and required for the construction, if any. "Business Day" means any Monday, Tuesday, Wednesday, Thursday or Friday on which Santa Ana City Hall is open to the public for the conduct of City affairs. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 31. "Certificate of Completion" has the meaning set forth in Article 17. "City" means the City of Santa Ana, California, a charter city and municipal corporation. "CDBG Deed of Trust" means the deed of trust encumbering the Property, in the form attached as Exhibit E to the Loan Agreement, to be executed by Owner pursuant to Section 5.13.2 in order to secure the CDBG Loan Note. "CDBG Loan" means the CDBG funds that will be awarded to the Owner in the principal amount of Five Hundred Thousand Dollars ($500,000.00) in accordance with the Loan Agreement. "CDBG Promissory Note" means that certain Promissory Note in the original principal amount of $500,000 in the form attached as Exhibit F to the Loan Agreement, and to be executed by Owner in favor of City to evidence the obligation of Owner to repay the CDBG Loan through residual receipts as further described in the CDBG Promissory Note. "Close of Escrow" shall mean the date upon which the Loan Agreement and City Deed of Trust are recorded in the Official Records of the County. "Closing Statement" means the final statement of Owner's Escrow account for the purchase of the Property pursuant to the purchase contract. "County" means the County of Orange, California. "Owner" means Santa Ana Arts Collective, LP, a California limited partnership. "Owner's Representative" shall mean the officer of the General Partner of Owner or his/her designee. "Extremely Low Income" means an adjusted income which does not exceed thirty percent (30%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "Event of Default" has the meaning set forth in Section 20.1. "General Partner(s)" means the Santa Ana Arts Collective, LLC, a California limited liability company and WCH Affordable XVIII, LLC, a California limited liability company. "Governmental Authority" means any governmental or quasi governmental agency, board, bureau, commission, department, court, administrative tribunal or other instrumentality or authority, and any public utility. "Hazardous Materials" means flammable materials, explosives, radioactive materials, hazardous wastes, toxic substances and similar substances and materials, including all substances and materials defined as hazardous or toxic wastes, substances or materials under any applicable law, including without limitation the 'Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et sN—, and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq., as amended. "HUD" means the United States Department of Housing and Urban Development and any successors or assigns thereof. "Improvements" means all improvements and fixtures now and hereafter comprising any portion of the Property, including, without limitation, landscaping, trees and plant materials; and offsite improvements, as required through the City of Santa Ana Planning and Building Agency entitlement process. "Inclusionary Deed of Trust" means the deed of trust encumbering the Property, in the form attached as Exhibit C to the Loan Agreement, to be executed by Owner pursuant to Section 5.13.2 in order to secure the Inclusionary Loan Note. "Inclusionary Loan" means the Inclusionary Funds that will be awarded to the Owner under the Loan Agreement that must be repaid through residual receipts. "Inclusionary Promissory Note" means that certain Promissory Note for Inclusionary Funds in the original principal amount of $4,775,000.00 in the form attached as Exhibit D to the Loan Agreement, and to be executed by Owner in favor of City to evidence the obligation of Owner to repay the Inclusionary Loan through residual receipts as further described in the Inclusionary Promissory Note. "Indebtedness" of a person means (a) all indebtedness for borrowed money, (b) notes payable and drafts accepted representing extensions of credit, whether or not representing obligations for borrowed money, (c) any obligation for the purchase of property or services in excess of $10,000 in the aggregate that is (i) deferred for more than six (6) months, or (ii) evidenced by a note or similar instrument, and (d) all recourse and all non- recourse indebtedness secured by any Lien on any property or asset of such person (whether or not assumed by such person). "Indemnitees" has the meaning set forth in Section 14.5. "Laws" means all statutes, laws, ordinances, regulations, orders, writs, judgments, injunctions, decrees or awards of the United States or any state, county, municipality or other Governmental Authority . "Lien" means any lien, mortgage, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any lien or security interest). "Loan Agreement" means the Loan Agreement regarding the loan of CDBG and Inclusionary funds between the City and the Owner, and any attachments thereto. "Loan Documents" means, collectively, the Loan Agreement, the CDBG Promissory Note, the CDBG Deed of Trust, Inclusionary Promissory Note, Inclusionary Deed of Trust and this Agreement, and any other agreement, document, or instrument that the City requires in connection with the execution of this Agreement or from time to time to effectuate the purposes of this Agreement. "Low Income" means an adjusted income which does not exceed eighty percent (80%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "Median Income for the Area" means the median income for the Orange County, California PMSA as most recently determined by HUD. Also may be referred to interchangeably in the Loan Documents as "Area Median Income" or "AMI". "Partnership Agreement" means the Second Amended and Restated Agreement of Limited Partnership of Santa Ana Arts Collective, LP., dated in July 2017. "Permitted Encumbrances for the Affordable Housing Restrictions" means collectively, the Senior Loan Deed of Trust and AHSC Loan Documents and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing. "Permitted Encumbrances for the City Deed of Trust" means, collectively, the Senior Loan Deed of Trust and AHSC Loan Documents and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing. "Project" means the construction of the Improvements upon the Property by Owner pursuant to this Agreement. "Project Budget" means the line -item budget for the Project attached as Exhibit G to the Loan Agreement, as modified from time to time in accordance with the Loan Agreement. "Project Costs" means all costs of any nature incurred in connection with the Project in accordance with generally accepted accounting principles. "Property" means the property that is located at 1.666 N. Main Street in the City of Santa Ana, and is more fully described in the "Legal Description" of the Property attached hereto as Exhibit A and incorporated herein by reference. "Restricted Units" means the units restricted as affordable by the City Documents. "Scope of Work/Schedule of Performance" means the detailed statement of the work to be performed by Owner on and to the Property pursuant to this Agreement, along with the Schedule of Performance setting forth timeframes for certain tasks, which document is attached as Exhibit H to the Loan Agreement. "Senior Lender" means a commercial financial institution providing the Senior Loan or any other holder of the Senior Loan Note and its successors and assigns. The initial Senior Lender will be Bank of America, N.A and California Community Reinvestment Corporation is projected to become the Senior Lender after conversion of the loan to permanent status. "Senior Loan" means a loan from any Senior Lender(s) in a position superior to the City Loan. "Senior Loan Deed of Trust" means any deed(s) of trust securing any Senior Loan by encumbering the Property. "Senior Loan Documents" means, collectively, the loan agreement governing the Senior Loan, the Senior Loan Note, the Senior Loan Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the Senior Loan. "Senior Loan Note" means the promissory note evidencing the Senior Loan from the Senior Lender. "Term of Affordability" the terms and conditions contained herein shall remain in effect for fifty-five (55) years from the date of issuance of the Certificate of Completion. "Very Low Income" means an adjusted income which does not exceed fifty percent (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. 2. Use of the Property. Owner covenants and agrees (for itself, its successors, its assigns, and every successor in interest to the Property of any part thereof) that Owner, such successors, and assigns shall use the Property to provide affordable rental housing, for Extremely Low and Very Low Income households, as provided in the Loan Agreement and these Restrictions. 3. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE PROPERTY 3.1 Use Covenants and Restrictions. a. Owner agrees and covenants, which covenants shall run with the land and bind Owner, its successors, its assign and every successor in interest to the Property that Owner will make all rental units on the Property available to extremely -low, very low and low income households at rents affordable to such households for fifty-five (55) years from the effective date of the issuance of the Certificate of Completion. b. The Project shall consist of approximately fifty-eight (58) units of which there will be twenty-six (26) one -bedroom units, fifteen (15) two-bedroom units and seventeen (17) three-bedroom units. There will be twenty (20) units with incomes at or below 30% AMI, six (6) units for households with incomes at or below 35% AMI; six (6) units for households with incomes at or below 40% AMI; twenty-five (25) units for households with incomes at or below 60% AMI; and the remaining unit will be reserved for the on-site manager. C. The proposed unit mix, initial rents, and levels of affordability are as follows: 30% AMI 35% AMI 40% AMI 60% AMI Unit Size No. Rent Units No. Units Rent No. Rent Units No. Units Rent Total 1 Bedroom 14 $587 6 $685 6 $783 26 2 Bedroom 2 $704 --- --- --- --- 12 $1,408 14 3 Bedroom 4 $813 --- --- --- --- 13 $1,627 17 Total 20 6 6 25 67 The remaining unit will be a 2 -bedroom unit reserved for the onsite manager. HOME Assisted Units (1) In no event shall the rent charged to the HOME assisted units be more than that amount of the low HOME rent as published by HUD, as amended from time to time. (2) At the time of project completion, the Developer shall provide to the City the address and/or unit number of each of the HOME floating units. (3) Annually with the financial statements, the Developer shall provide an annual report of rents and occupancy of all assisted units, including the HOME -assisted units, to verify compliance with affordability requirements. For the HOME assisted -units, information on unit substitution and filling vacancies shall be provided to ensure that the project maintains the required unit mix. The affordable rents charged at the Project must comply with the standards set forth by California Tax Credit Allocation Cornmittee (TCAC). Notwithstanding anything to the contrary contained in this Agreement, the Affordability Restrictions on Transfer of Property, and other than HOME assisted units, restricted (as to both income and rent levels) at 30% of AMI, in the event of a foreclosure, or delivery of deed in lieu of foreclosure, of any Senior Loan, then the (1) the maximum qualifying tenant household income shall be increased to 60% of Area Median Income adjusted for family size appropriate to the unit, and (2) the maximum annual affordable rent shall be increased to 30% of 60% of Area Median Income, as adjusted for family size appropriate to the unit. * Utility allowances must be deducted from the Maximum Gross Monthly Rent. The City of Santa Ana will provide the utility allowances based on the HUD Utility Schedule Model. d. Initial rents may be recalculated to allowable rental amounts at the time of initial lease -up following completion of construction in accordance with any changes in allowable rent and income tables as published by HUD. 3.2 Rent Increases: A. On an annual basis, the City shall provide the Owner with the HUD maximum allowable schedule of incomes and rents (less utility allowance appropriate for the Restricted Units) for the Property. B. Owner, its successors and assigns shall not charge rents for the Restricted Units in excess of the amounts set forth in the tables as adjusted from time -to -time by HUD. The Housing Unit Type Level of # of HOME HOME Share of Total # of Units Description/ No. of BlIs Affordability Assisted Units Unit Type Notes 26 1 Bed 1 30%AMI 5 19.23% 14 2 Bed 2 2 14.29% 17 3 Bed 3 4 23.53% (1) In no event shall the rent charged to the HOME assisted units be more than that amount of the low HOME rent as published by HUD, as amended from time to time. (2) At the time of project completion, the Developer shall provide to the City the address and/or unit number of each of the HOME floating units. (3) Annually with the financial statements, the Developer shall provide an annual report of rents and occupancy of all assisted units, including the HOME -assisted units, to verify compliance with affordability requirements. For the HOME assisted -units, information on unit substitution and filling vacancies shall be provided to ensure that the project maintains the required unit mix. The affordable rents charged at the Project must comply with the standards set forth by California Tax Credit Allocation Cornmittee (TCAC). Notwithstanding anything to the contrary contained in this Agreement, the Affordability Restrictions on Transfer of Property, and other than HOME assisted units, restricted (as to both income and rent levels) at 30% of AMI, in the event of a foreclosure, or delivery of deed in lieu of foreclosure, of any Senior Loan, then the (1) the maximum qualifying tenant household income shall be increased to 60% of Area Median Income adjusted for family size appropriate to the unit, and (2) the maximum annual affordable rent shall be increased to 30% of 60% of Area Median Income, as adjusted for family size appropriate to the unit. * Utility allowances must be deducted from the Maximum Gross Monthly Rent. The City of Santa Ana will provide the utility allowances based on the HUD Utility Schedule Model. d. Initial rents may be recalculated to allowable rental amounts at the time of initial lease -up following completion of construction in accordance with any changes in allowable rent and income tables as published by HUD. 3.2 Rent Increases: A. On an annual basis, the City shall provide the Owner with the HUD maximum allowable schedule of incomes and rents (less utility allowance appropriate for the Restricted Units) for the Property. B. Owner, its successors and assigns shall not charge rents for the Restricted Units in excess of the amounts set forth in the tables as adjusted from time -to -time by HUD. The Housing Manager shall notify Owner in writing of the adjusted allowable maximum incomes and rents. 4. Miscellaneous Provisions: A. Owner shall adopt and include as part of its Management Plan (described in subsection G below), written tenant selection policies and criteria for the Units, that meet the following requirements: (a) Are consistent with the purpose of providing housing for Extremely Low and Very Low Income households; (b) Are reasonably related to program eligibility and the applicants' ability to perform the obligations of the lease; (c) Give reasonable consideration to the housing needs of households that would have a preference under 42 CFR §906.211 (Federal selection preferences for admission to Public Housing); (d) Provide for: (i) The selection of tenants from a written waiting list in the chronological order of their application, insofar as is practicable; and (ii) The prompt written notification to any rejected applicant of the grounds for any rejection; (e) Provide first priority in the selection of qualified eligible tenants to households that are referred by the City; and (f) Carry out the Affirmative Marketing procedures of the City of Santa Ana, which are designed to provide information and otherwise attract eligible persons from all racial, ethnic and gender groups in the housing market area to the units. Owner, the City shall cooperate to effectuate this provision prior to the initial renting, or upon occurrence of a vacancy, and the re -renting of any Restricted Units (24 CFR 92.351). B. Owner, its successors and assigns, shall not refuse to lease a unit to a holder of a rental voucher under 24 CFR part 982 (Housing Choice Voucher Program) or to a holder of a comparable document evidencing participation in a HOME tenant -based rental assistance program because of the status of the prospective tenant as a holder of such certificate of family participation, rental voucher, or comparable HOME tenant -based assistance document. C. Any lease of any of the Units must be for not less than one year, unless by mutual agreement between the tenant and the Owner. Should the tenant and Owner agree to a term of less than one year, said agreement shall be expressed in some type of written form, signed by the tenant, and maintained in the tenant's rental file held by the Owner. The lease may not contain any of the following provisions (in which references to "Owner" shall mean the Owner, its successors or assigns): (a) Agreement by the tenant to be sued, to admit guilt, or to a judgment in favor of the owner in a lawsuit brought in connection with the lease; (b) Agreement by the tenant that the owner may take, hold, or sell personal property of household members without notice to the tenant and a court decision on the rights of the parties. This prohibition, however, does not apply to an agreement by the tenant concerning disposition of personal property remaining in the housing Unit after the tenant has moved out of the Unit. The owner may dispose of this personal property in accordance with state law; (c) Agreement by the tenant not to hold the owner or the owner's agent legally responsible for any action or failure to act, whether intentional or negligent; (d) Agreement of the tenant that the owner may institute a lawsuit without notice to the tenant; (e) Agreement by the tenant that the owner may evict the tenant or household members without instituting a civil court proceeding in which the tenant has the opportunity to present a defense, or before a court decision on the rights of the parties; (f) Agreement by the tenant to waive any right to a trial by jury; (g) Agreement by the tenant to waive the tenant's right to appeal, or to otherwise challenge in court, a court decision in connection with the lease; and (h) Agreement by the tenant to pay attorney's fees or other legal costs even if the tenant wins in a court proceeding by the owner against the tenant. The tenant, however, may be obligated to pay costs if the tenant loses. D. Owner, its successors or assigns, must adhere to state law requirements with regard to termination of tenancy. E. Owner shall maintain the improvements on the Property in compliance with all applicable housing quality standards [24CFR 92.504 (c)(6)] and state and local code requirements and shall keep the Property free from any unreasonable accumulation of debris or waste materials. Owner shall also maintain in a healthy condition any landscaping planted on the Property. F. Owner covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof, there shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, religion, disability, sex, marital status, national origin or ancestry in the sale, lease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall the Owner itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the ,Property, as required by the Title VI of the Civil Rights Act of 1964, the Fair Housing Act (42 U.S.C. 3601-20) and all implementing regulations, and the Age Discrimination Act of 1975, and all implementing regulations. G. Not later than the closing for the construction loan for the Project, Owner shall submit to the Housing Manager a Management Plan in a form that is acceptable including, but not limited to, the components listed below. Approval of the Management Plan must be obtained from the Housing Manager not later than the time for the issuance of a certificate of occupancy for the Project. Owner shall manage the Restricted Units in accordance with the approved Management Plan, including such amendments as may be approved in writing from time to time by the Housing Manager, for the term of the income and rent restrictions contained in these Restrictions. The components of the Management Plan shall include: (a) Management Agent. Owner shall submit the name and qualifications of the proposed Management Agent. The City shall approve or disapprove the proposed Management Agent in writing based on the experience and qualifications of the Management Agent. (b) Management Agreement. Owner shall submit a copy of the proposed management agreement specifying the amount of the management fee, and the relationship and division of responsibilities between Owner and Management Agent. (c) Annual Budget and Projected Cash Flows. Prior to the issuance of a certificate of occupancy for the Project, and annually thereafter not later than one hundred fifty (150) days after the close of each calendar year thereafter, Owner shall submit a projected operating budget and cash flow to the Housing Manager. The budget and cash flow shall be in a form that is acceptable to the Housing Manager. (d) Tenant Selection Policies. Owner shall include in the Management Plan the tenant selection policies in accordance with Section 4, above. H. If at any time the City determines that the units are not being managed or maintained in accordance with the approved Management Plan, Owner shall change the management agent or the practices complained of, upon receipt of written notice from the City Manager. The City Manager may require Owner to change management practices or to terminate the management contract and designate and retain a different management agent. The management agreement shall provide that it is subject to termination by Owner without penalty, upon thirty (30) days prior written notice, at the direction of the City Manager. Within ten (10) days following a direction of the City Manager to replace the management agent, the Owner shall select another management agent or make other arrangements satisfactory to the City Manager or designee for continuing management of the units. I. The covenants established in these Restrictions and any amendments hereto approved by the City, and Owner shall, without regard to technical classification and designation, be binding for the benefit and in favor of the City and their respective successors and assigns. These Restrictions shall remain in effect for fifty-five (55) years. In its discretion, the City may defer repayment of the Loan or the City may agree to such reasonable modifications to the requirements of these Restrictions, as they may determine are necessary for the continued maintenance and operation of the Restricted Units. The covenants against discrimination shall remain in effect for the period of these Restrictions. J. Owner shall not request disbursement of City funds until the funds are needed to pay eligible costs. The City shall have the right to disapprove any request if the City determines the request is for an ineligible item or is otherwise not in compliance with or inconsistent with the Loan Agreements and these Restrictions [24 CFR 92.504 (c)(10)]. K. Owner shall prepare, maintain and submit to the City, as appropriate, the following records and reports in compliance with 24 CFR 92.504 (e) (12): a. Annual Reports. Owner shall file with the City an Annual Report (herein referred to as the "Annual Report") within one hundred fifty (150) days following the end of each calendar year, commencing the Calendar Year following the issuance of the Certificate of Completion. The Annual Report shall contain a certification by Owner as to such information as the City Project Manager may then require, including, but not limited to, the following: (1) The fiscal condition of the Project, including the Annual Budget and Project Cash Flow report required by Section 4.G. (c) of the this Agreement which shall include an audited financial statement for the previous calendar year that includes a balance sheet and a profit and loss statement indicating any surplus or deficit in operating accounts; a detailed itemized listing of income and expenses; and the amounts of any fiscal reserves. Such Annual Budget and audited financial statement shall be prepared in accordance with generally accepted accounting practices. (2) Any substantial physical defects in the Project, including a description of any major repair or maintenance work undertaken or needed in the previous and current years. Such statement shall describe what steps Owner has taken in order to maintain the Project in a safe and sanitary condition in accordance with applicable housing and building codes and the property standards set forth in 24 CFR 92.251. (3) The occupancy of the units indicating the income of each current resident and the current rents charged each resident and whether those rents include utilities, including records that demonstrate that the Project meets the requirements of the CDBG and Inclusionary Housing Program. (4) General management performance, including tenant relations and other relevant information. (5) Records that demonstrate that the units meet the affordability requirements of 24 CFR 92.252, for the required period of affordability. (6) Evidence of a currently paid hazard insurance policy in accordance with the requirements of Section 6 of the CDBG Deed of Trust and Inclusionary Deed of Trust, with a loss payable endorsement naming the City as a loss payee together with other approved lenders (as their interests may appear), with a "Replacement Cost Endorsement" in amount sufficient to prevent Owner or City from becoming a co-insurer under the terms of the policy, but in any event in an amount not less than 100% of the then full replacement cost, to be determined at least once annually and subject to reasonable approval by the Executive Director. (7) Evidence of a currently paid liability insurance policy, naming the City as additional insured and in a form approved by the City Attorney with coverage as described in the Loan Agreements. (8) Termite reports pertaining to the Property every fifth (5th) year. (9) Such other information as may be reasonably required by the City Manager or his/her designee. b. Records and Audits. Owner shall maintain the following general program records, and make them available for inspection by the City, the State or HUD: (1) records which demonstrate that the project meets the property standard specified in 24 CFR 92.251; (2) records, for each Restricted Unit, which demonstrates that the project meets the requirements of 24 CFR 92.252. (3) records which demonstrate compliance with the tenant and participant protections, as specified in 24 Section 29.253; (4) records which demonstrate compliance with the Equal Opportunity and Fair Housing requirements outlined in these Restrictions, including: (A) data on the extent to which each racial and ethnic group and single head of household (by gender of bead of household) have applied for, participated in, or benefited from, any program or activity funded in whole or in part with NSP funds; (B) documentation of actions undertaken to meet the equal opportunity requirements of 24 CFR 92.350, which implements Section 3 of the Housing Development Act of 1968, as amended (12 U.S.C. 1701u); (C) documentation and data on the steps taken to implement Owner's outreach programs to minority-owned and women -owned businesses to meet the minority outreach requirements of 24 CFR 92.350; (5) documentation of the steps taken to carry out an affirmative marketing program in accordance with 24 CFR 92.35 t, if applicable; (6) if applicable, records which demonstrate compliance with the requirements relating to relocation of displaced persons, as described in 24 CFR 92.353. At a minimum, these shall include project occupancy lists identifying the name and address of all persons occupying the project property up until the date of the date on which Owner obtained ownership of the Property; (7) records concerning lead-based paint in accordance with 24 CPR 92.355; (8) if applicable, records which support any requests for waivers of the conflict of interest prohibition as stated in 24 CPR 92.356; (9) records of certifications of contractor qualifications as they relate to the debarment and suspension requirement as stated in 24 CFR 92.357 and 24 CFR Part 24; and (10) any other reports issued by other monitoring agencies. C. All records pertaining to each calendar year of NSP funds must be retained for the most recent five year period, except that for rental housing projects, records may be retained for five years after the project completion date; except that records of individual tenant income verifications, project rents and project inspections must be retained for the most recent five year period, until five years after the affordability period terminates (24 CFR 92.508). Owner shall cooperate with the City to retain all books and records relevant to the Loan Agreement for a minimum of five years after the expiration of the Loan Agreement and any and all amendments hereto, or for five years after the conclusion or resolution of any and all audits or litigation relevant to the Loan Agreement, whichever is later. The City, the State, the Office of the Auditor General of HUD, and/or their representatives shall have unrestricted reasonable access to all locations, books, and records for the purpose of monitoring, auditing, or otherwise examining said locations, books, and records with or without prior notice. d. If so directed by the City or HUD upon termination of the Loan Agreement, Owner shall cause all records, accounts, documentation and all other materials relevant to the work to be delivered to the City or HUD, as depository. e. All records, accounts, documentation and other materials relevant to the Project shall be accessible at any time to the authorized representatives of the City, or HUD, on reasonable prior notice, for the purpose of examination or audit. f. Pursuant to 24 CFR Part 44, the City shall perform an annual audit at the close of each calendar year in which these Restrictions are in effect. Owner shall reasonably cooperate with City in performing such audit. g. Owner shall permit the City to perform an Annual Physical Inspection of the Property with at least seven (7) days notice. Owner shall cooperate with this Inspection and shall take all steps necessary to quickly correct any code deficiencies identified during the Inspection. L. The City is the beneficiary of the terms and provisions of these Restrictions and the covenants herein, both for and in its own right and for the purposes of protecting the interests of the community and other parties, public or private, for whose benefit these Restrictions and the covenants running with the land have been provided. The City shall have the right if the covenants are breached, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which they or any other beneficiaries of these Restrictions and covenants are entitled. M. The covenants and agreements contained herein shall run with the land and not be personal obligations of Owner. Upon the sale, conveyance or other transfer of the Property (a "Transfer") and the assumption of the obligations hereunder by a transferee, Owner's liability for performance shall be terminated as to any obligation to be performed hereunder after the date of such Transfer. N. The Loan Agreement and all of its attachments shall be enforceable by the City in accordance with the terms thereof. Each of the Loan Agreement, the Affordability Restrictions on Transfer of Property, the City Note and the City Deed of Trust provide a means of enforcement by the City if Owner is in breach of its obligations hereunder and thereunder, including liens on the Property, deed restrictions and covenants running with the land [24 CFR 92.504 (c) (13)]. IN WITNESS WHEREOF, the parties hereto have executed these Affordability Restrictions on Transfer of Property as of the date and year first stated above. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM Sonia R. Carvalho City Ntorney wm Attorney RECOMMENDEDFOAPPROVAL: Acting Executive Director Community Development Agency 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 July 24, 2017 before me, Rosa A. Flores, Notary Public (insert name and title of the officer) personally appeared Cynthia J. Kurtz who proved to me on the basis of satisfactory evidence to be the personX whose name(s) is/efe 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 signatureof on the instrument the persor;(s); or the entity upon behalf of which the person,*Yacted, 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. _ .,-« ROSA A.FLORES ' Commission # 2057129 Notary Public • California orange County )@ My Comm. Ex fires Feb 7, 2018' Signature40 a • l``OIX# � (Seal) dc/► __ -. Santa Ana Arts Collective, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, A California limited liability company, its administrative eneral partner By: Kasey Burke, i sident By: WC ffordable XV1I1, LLC, a Califo is limited liability company its managi general partner 0 SIGNED Graham P. Esnlev-fines, President 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 Los Angeles On July 13, 2017 before me, Rutzel M. Castillo, Notary Public (insert name and title of the officer) personally appeared Kasey Burke 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. RUTZEL M. cnsliLi.c Commission 8 2100469 Miatery Pubflc - California i Floe Angeles County � MaIRIR Es Ira sr 19 2019 Signature CiYwv� (Seal) { Commission # 2100469 Notary Public California LOS Angeles County LIMBO DI Santa Ana Arts Collective, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, A California limited liability company, its administrative general partner IM SIGNED IN COUNTERPART Kasey Burke, Vice President By: WCH Affordable XVIII, LLC, a California limited liability company its managing general artner By: j u' Sandra Gibbons, Exe tive Vice President / CFO CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies onlythe identityof 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 1 County of Orange 1 On July 13, 2017 before me, Leanne Truofreh, Notary Public Date Here Insert Name and Title of the Officer personally appeared Sandra Gibbons Nome(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person($) whose name() is/awe subscribed to the within instrument and acknowledged to me that �e/she/tlhey executed the same in lois/her/tkreir authorized capacityK-s), and that by his/her/tM�-ir signature(g) on the Instrument the personA, 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. Signature (/) r_ Place Notary Seal and/or Stamp Above Signature of Notary 9u, lic OPTIONAL (/ Completing this information con deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: 1st Amended & Restated Affordability Restrictions Document Date: July 5, 2017 Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian of Conservator ❑ Other: Signer is Representing: 02017 National Notary Association Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Trustee ❑ Other: Signer is Representing: ❑ Attorney in Fact ❑ Guardian of Conservator LEA NNETRUOFREH ,c * Commission N 2064657 a =® Notary Public - California z z zO: Orange County i My Comm. Expires May 12, 2016 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 (/) r_ Place Notary Seal and/or Stamp Above Signature of Notary 9u, lic OPTIONAL (/ Completing this information con deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: 1st Amended & Restated Affordability Restrictions Document Date: July 5, 2017 Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian of Conservator ❑ Other: Signer is Representing: 02017 National Notary Association Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Trustee ❑ Other: Signer is Representing: ❑ Attorney in Fact ❑ Guardian of Conservator Exhibit "A" Legal Description Real property in the City of Santa Ana, County of Orange, State of California, described as follows: PARCEL A: THAT PORTION OF SECTION 12, TOWNSHIP 5 SOUTH, RANGE 10 WEST, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, BEING A PORTION OF THE LAND ALLOCATED TO JACOB ROSS IN DECREE OF PARTITION OF THAT RANCHO SANTIAGO DE SANTA ANA, RECORDED IN BOOK "B" OF JUDGEMENTS OF 17TH JUDICIAL DISTRICT COURT OF CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID SECTION 12, BEING ALSO THE INTERSECTION OF THE CENTER LINES OF SEVENTEENTH STREET AND MAIN STREET AS SAID INTERSECTION IS SHOWN ON A MAP FILED IN BOOK 11 PAGE 18 OF RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY, CALIFORNIA; THENCE ALONG THE NORTHERLY LINE OF SAID NORTHEAST QUARTER, NORTH 89° 56' 40" WEST 289.89 FEET; THENCE SOUTH 00 16' 25" WEST 230.00 FEET; THENCE PARALLEL WITH THE NORTHERLY LINE OF SAID NORTHEAST QUARTER, SOUTH 89° 56' 40" EAST 289.78 FEET TO THE EASTERLY LINE OF SAID NORTHEAST QUARTER; THENCE ALONG SAID EASTERLY LINE NORTH 00 16'40" EAST 230.00 FEET TO THE POINT OF BEGINNING. EXCEPT THE NORTHERLY 40.00 FEET THEREOF. ALSO EXCEPT THE EASTERLY 35.00 FEET THEREOF. APN: 005-153-19 and 005-153-20 RECORDING REQUESTED BY FIRST AMERICAN TITLE INSURANCE CO. NATIONAL COMMERCIAL SERVICES NCS-713Wi1- 51-1 FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana Clerk of the Council 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Attention: Clerk of the Council A--20II-173 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder IIJ[II II1111IIIIIIII11$11I11 [I 1111I I[I 1111I [I 1[ 11111 11I 111 NO FEE * $ R 0 0 0 9 4 4 2 0 0 4 $ 2017000308360 3,25 pm 07126117 7 405 R29 21 0.00 0.00 0.00 0.00 60.00 0.00 0.00 0.00 01"a_B 0., 911 AL AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY {Address 1666 N. Main Street, Santa Ana, CA) THESE AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY (the "Restrictions") are entered into by and between Santa Ana Arts Collective, LP, a California limited partnership ("Owner") and the City of Santa Ana, a charter city and municipal corporation (the "City"). RECITALS: A. The City has received an allocation of funds from the United States Department of Housing and Urban Development ("HUD") under the HOME Investment Partnerships Program ("HOME Program") (42 U.S.C. § 12701, et seq.) to be used in accordance with applicable statutory requirements and regulations ("HOME Regulations")(24 CFR 92); B. Among the purposes of the HOME Program are (1) to expand the supply of decent, safe, sanitary, and affordable housing, with primary attention to rental housing, for very low-income and low-income Americans; and (2) to provide participating jurisdictions, on a coordinated basis, with the various forms of federal housing assistance, including capital investment, mortgage insurance, rental assistance, and other federal assistance, needed (a) to promote the development of partnerships among the federal government, states and units of general local government, private industry, and nonprofit organizations able to utilize all available resources to provide more of such housing, and (b) to expand the capacity of nonprofit community housing development organizations to develop and manage decent, safe, sanitary and affordable housing; C. The City is authorized by the HOME Regulations to expend funds to 'increase the supply of very low and low-income housing available at affordable housing costs. THIS DOCUMENT WAS SIGNED IN COUNTERPART AND IS TO BE CONSIDERED AS ONE RECORDABLE DOCUMENT. RECORDING REQUESTED BY FIRST AMERICAN TITLE INSIJRANCE CO. NATIONAL COMMERCIAL SERVICES NCS-1��g31, S" FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana Clerk of the Council 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Attention: Cleric of the Council AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY (Address: 1666 N. Main Street, Santa Ana, CA) THESE AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY (the "Restrictions") are entered into by and between Santa Ana Arts Collective, LP, a California limited partnership ("Owner") and the City of Santa Ana, a charter city and municipal corporation (the "City"). RECITALS: A. The City has received an allocation of funds from the United States Department of Housing and Urban Development ("HUD") under the HOME Investment Partnerships Program ("HOME Program") (42 U.S.C. § 12701, et seq.) to be used in accordance with applicable statutory requirements and regulations ("HOME Regulations")(24 CFR 92); B. Among the purposes of the HOME Program are (1) to expand the supply of decent, safe, sanitary, and affordable housing, with primary attention to rental housing, for very low-income and low-income Americans; and (2) to provide participating jurisdictions, on a coordinated basis, with the various forms of federal housing assistance, including capital investment, mortgage insurance, rental assistance, and other federal assistance, needed (a) to promote the development of partnerships among the federal government, states and units of general local government, private industry, and nonprofit organizations able to utilize all available resources to provide more of such housing, and (b) to expand the capacity of nonprofit community housing development organizations to develop and manage decent, safe, sanitary and affordable housing; C. The City is authorized by the HOME Regulations to expend funds to increase the supply of very low and low-income housing available at affordable housing costs. THIS DOCUMENT WAS SIGNED IN COUNTERPART AND IS TO BE CONSIDEREDAS ONE RECORDABLE DOCUMENT D. The City issued a Request for Proposals on June 1, 2015, seeking affordable housing projects. After reviewing all applications, the Owner's project was selected and approved for funding by the Santa Ana City Council on November 3, 2015. E. Owner is entering into this Agreement to acquire and, subject to entitlement approvals, develop an adaptive reuse project consisting of a fifty-eight (58) unit multi -family residential housing development, with live/work units and a possible commercial art studio, as well as a community room (the "Project") located at 1666 N. Main Street, within the City of Santa Ana, California, and legally described in Exhibit A attached hereto (the "Property"). The HOME funds referenced herein shall assist in the acquisition, rehabilitation, construction, and soft costs of said Project. F. In furtherance of the HOME Program, Owner has applied to the City for a loan with which to: provide deeper affordability and construct the improvements to the Property; and, thereafter to maintain, operate and professionally manage the Project as decent, safe, sanitary and affordable rental housing. G. The City, on certain terms and conditions, desires to make such loan ("HOME Loan") to Owner in order to make possible the rehabilitation and construction of the Project, thereby expanding the supply of decent, safe, sanitary and affordable housing. H. If there is any inconsistency between Federal, State, and local guidelines with regard to any of the terms and conditions contained herein, the more stringent shall apply. I. Owner and the City are concurrently entering into that certain HOME Loan Agreement. The Loan Agreement, HOME Deed of Trust, and HOME Promissory Note, dated concurrently herewith (collectively the "Loan Agreements") are entered into for the purpose of providing for affordable extremely low and very low income residential rental units in the City of Santa Ana pursuant to the HOME Program regulations and guidance. NOW, THEREFORE, CITY AND OWNER COVENANT AND AGREE AS FOLLOWS: Definitions "AHSC Loan" means a permanent loan of Affordable Housing and Sustainable Communities program funds from HCD administered by the California Strategic Growth Council in the amount of $4,944,130 "AHSC Deed of Trust" means the any deed(s) of trust securing the AHSC Loan encumbering the Property. "AHSC Loan Documents" means, collectively, the loan agreement governing the AHSC, the AHSC Note, the AHSC Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the AHSC Loan. "Affordable Housing" means housing operated in accordance with the requirements of 24 CFR 92.252 and the rents governed by California Health and Safety Code Section 50052.5. "Affordable Rent" means the monthly rents which do not exceed the maximum amount applicable to Extremely Low, Very Low and Low Income households, as promulgated by the U.S. Department of Housing and Urban Development (HUD), or by the California Tax Credit Allocation Committee, as applicable. "Building Permit" means the building permit(s) issued by City and required for the Construction, if any. "Business Day" means any Monday, Tuesday, Wednesday, Thursday or Friday on which Santa Ana City Hall is open to the public for the conduct of City affairs. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 30. "Certificate of Completion" has the meaning set forth in Article 17. "City" means the City of Santa Ana, California, a charter city and municipal corporation. "Close of Escrow" shall mean the date upon which the HOME Loan Deed of Trust is recorded in the Official Records of the County. "Closing Statement" means the final statement of Owner's Escrow account for the purchase and sale of the Property pursuant to the Purchase Contract. "Construction" means the demolition and construction activities required to construct, until Certificate of Completion, the Project. "County" means the County of Orange, California. "Event of Default" has the meaning set forth in Section 20.1. "Extremely Low Income" means an adjusted income which does not exceed thirty percent (30%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "General Partner(s)" means the Santa Ana Arts Collective, LLC, a California limited liability company and WCH Affordable XVIII, LLC, a California limited liability company. "Governmental Authority" means any governmental or quasi -governmental agency, board, bureau, commission, department, court, administrative tribunal or other instrumentality or authority, and any public utility. "Hazardous Materials" means flammable materials, explosives, radioactive materials, hazardous wastes, toxic substances and similar substances and materials, including all substances and materials defined as hazardous or toxic wastes, substances or materials under any applicable law, including without limitation the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq., as amended. "HOME Compliance Period" means twenty (20) years from the issuance of the Certificate of Completion or until payment of principal and all accrued interest on the HOME Loan, whichever comes last. "HOME Loan" means the loan with principal amount of TWO MILLION, TWO HUNDRED AND NINETEEN THOUSAND, SEVEN HUNDRED AND SIXTY DOLLARS ($2,219,760.00) to be made to Owner by City from HOME funds pursuant to Article 5 of this Agreement. "HOME Loan Deed of Trust" means the deed of trust encumbering the Property, in the form attached as Exhibit C to the Loan Agreement, to be executed by Owner pursuant to Section 5.13.2 in order to secure the HOME Loan Promissory Note. "HOME Loan Promissory Note" means that certain promissory note in the original principal amount of TWO MILLION, TWO HUNDRED AND NINETEEN THOUSAND, SEVEN HUNDRED AND SIXTY DOLLARS ($2,219,760.00) in the form attached hereto as Exhibit D, and to be executed by Owner in favor of City to evidence the obligation of Owner to repay the HOME Loan. "HOME Program" has the meaning set forth in Recital "A" above "HOME Regulations" has the meaning set forth in Recital "A" above. "HOME Units" means the eleven (11) affordable units assisted with HOME funds. "HUD" means the United States ,Department of Housing and Urban Development and any successors or assigns thereof. "Improvements" means all improvements and fixtures now and hereafter comprising any portion of the Property, including, without limitation, landscaping, trees and plant materials; and offsite improvements, as required through the City of Santa Ana Planning and Building Agency entitlement process. "Indebtedness" of a person means (a) all indebtedness for borrowed money, (b) notes payable and drafts accepted representing extensions of credit, whether or not representing obligations for borrowed money, (c) any obligation for the purchase of property or services in excess of $10,000 in the aggregate that is (i) deferred for more than six (6) months, or (ii) evidenced by a note or similar instrument, and ( d) all recourse and all non-recourse indebtedness secured by any Lien on any property or asset of such person (whether or not assumed by such person). "Indemnitees" has the meaning set forth in Section 14.5. "Laws" means all statutes, laws, ordinances, regulations, orders, writs, judgments, injunctions, decrees or awards of the United States or any state, county, municipality or other Governmental Authority. "Lien" means any lien, mortgage, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any lien or security interest). "Limited Partner" means the Limited Partners of Owner, and their successors and assigns. "Loan Documents" means, collectively, this Agreement, the HOME Loan Note, the HOME Deed of Trust, the Affordability Restrictions on Transfer of Property, and any other agreement, document, or instrument that the City requires in connection with the execution of this Agreement or from time to time to effectuate the purposes of this Agreement. "Low Income" means an adjusted income which does not exceed eighty percent (80%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "Median Income for the Area" means the median income for the Orange County, California PMSA as most recently determined by HUD. Also may be referred to interchangeably in the Loan Documents as "Area Median Income" or "AMI". "Owner" means Santa Ana Arts Collective, L.P., a California limited partnership. "Owner's Representative" shall mean an officer of the General Partner of Owner or his/her designee. "Partnership Agreement" means the Second Amended and Restated Agreement of Limited Partnership of Santa Ana Arts Collective, L.P., dated in July 2017. "Permitted Encumbrances for the Affordable Housing Restrictions" means, collectively, the Senior Loan Deed of Trust and AHSC Loan Documents and all other title exceptions and limitations with respect to the Property hereafter approved by the Executive Director in writing. "Permitted Encumbrances for the HOME Loan Deed of Trust" means, collectively, the Senior Loan Deed of Trust and AHSC Loan Documents and all other title exceptions and limitations with respect to the Property hereafter approved by the Executive Director in writing. "Project" means the construction of the Improvements upon the Property by Owner pursuant to this Agreement. "Project Budget" means the line -item budget for the Project attached as Exhibit E to the Loan Agreement, as modified from time to time in accordance with this Agreement. "Project Costs" means all costs of any nature incurred in connection with the Project in accordance with generally accepted accounting principles. "Property" means the property that is located at 1666 N. Main Street in the City of Santa Ana, and is more fully described in the "Legal Description" of the Property attached hereto as Exhibit A and incorporated herein by reference. "Scope of Worh/Schedule of Performance" means the detailed statement of the work to be performed by Owner on and to the Property pursuant to this Agreement, along with the Schedule of Performance setting forth timeframes for certain tasks, which document is attached as Exhibit F to the Loan Agreement. "Section 504" means section 504 of the federal Rehabilitation Act of 1973, codified at 29 U.S.C. § 701 et seq., and its implementing regulations located at 24 CFR 8. "Senior Lender" means a commercial financial institution providing the Senior Loan or any other holder of the Senior Loan Note. "Senior Loan" means a loan from any Senior Lender(s) in a position superior to the HOME Loan. "Senior Loan Deed of Trust" means any deed(s) of trust securing any Senior Loan by encumbering the Property. "Senior Loan Documents" means, collectively, the loan agreement governing the Senior Loan, the Senior Loan Note, the Senior Loan Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the Senior Loan. "Senior Loan Note" means the promissory note evidencing the Senior Loan from the Senior Lender. "Term of Affordability" the terms and conditions contained herein shall remain in effect for fifty-five (55) years from the date of issuance of the Certificate of Completion. "Very Low Income" means an adjusted income which does not exceed fifty percent (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. 2. Use of the Property. Owner covenants and agrees (for itself, its successors, its assigns, and every successor in interest to the Property of any part thereof) that Owner, such successors, and assigns shall use the Property to provide affordable rental housing, for Extremely Low and Very Low Income households, as provided in the Loan Agreement and these Restrictions AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE PROPERTY 3.1 Use Covenants and Restrictions. a. Owner agrees and covenants, which covenants shall run with the land and bind Owner, its successors, its assign and every successor in interest to the Property that Owner will make all rental units on the Property available to extremely -low, very low and low income households at rents affordable to such households for fifty- five (55) years from the effective date of the issuance of the Certificate of Completion. b. The eleven (11) HOME assisted units shall be enforced until the date that is twenty (20) years after the date on which the City reports the Project as complete to HUD. Upon expiration of the twenty (20) year HOME compliance period, the City will enforce affordability of the eleven (11) units with the same income and rent restrictions as the other forty-six (46) units operated on the Property, pursuant to the California Health and Safety Code. C. The Project shall consist of approximately fifty-eight (58) units of which there will be twenty-six (26) one -bedroom units, fifteen (15) two-bedroom units and seventeen (17) three-bedroom units. There will be twenty (20) units for households with incomes at or below 30% AMI, six (6) units for households with incomes at or below 35% AMI, six (6) units for households with incomes at or below 40% AMI, twenty-five (25) units for households with incomes at or below 60% AMI; and the remaining unit will be reserved for the on-site manager. d. The proposed unit mix, initial rents, and levels of affordability are as follows: The remaining unit will be a 2 -bedroom unit reserved for the onsite manager. HOME Assisted Units 30% AMI 36% AMI 40% AMI 60% AMI Total # of Units Unit Size No. Units Rent No. Units Rent No. Rent Units No. Units Rent Total 1 Bedroom 14 $587 6 $685 6 $783 2Bed 2 2 26 2 Bedroom 2 $704 --- --- --- --- 12 $1,408 14 3 Bedroom 4 $813 --- --- --- --- 13 $1,627 17 Total 20 6 6 25 57 The remaining unit will be a 2 -bedroom unit reserved for the onsite manager. HOME Assisted Units Unit Type Level of # of HOME HOME Share of Total # of Units Description/No No. of BRs Affordability Assisted Units Unit Type tes 26 1 Bed 1 30%AMI 5 19.23% 14 2Bed 2 2 14.29% 17 3 Bed 3 4 23.53% (1) In no event shall the rent charged to the HOME assisted units be more than that amount of the low HOME rent as published by HUD, as amended from time to time. (2) At the time of project completion, the Developer shall provide to the City the address and/or unit number of each of the HOME floating units. (3) Amorally with the financial statements, the Developer shall provide an annual report of rents and occupancy of all assisted units, including the HOME -assisted units, to verify compliance with affordability requirements. For the HOME assisted -units, information on unit substitution and filling vacancies shall be provided to ensure that the project maintains the required unit mix. The affordable rents charged at the Project must comply with the standards set forth by California Tax Credit Allocation Committee (TCAC). Notwithstanding anything to the contrary contained in this Agreement, the Affordability Restrictions on Transfer of Property, and other than HOME assisted units, restricted (as to both income and rent levels) at 30% of AMI, in the event of a foreclosure, or delivery of deed in lieu of foreclosure, of any Senior Loan, then the (1) the maximum qualifying tenant household income shall be increased to 60% of Area Median Income adjusted for family size appropriate to the unit, and (2) the maximum annual affordable rent shall be increased to 30% of 60% of Area Median Income, as adjusted for family size appropriate to the unit. * Utility allowances must be deducted from the Maximum Gross Monthly Rent. The City of Santa Ana will provide the utility allowances based on the HUD Utility Schedule Model. e. Initial rents may be recalculated to allowable rental amounts at the time of initial lease -up following completion of construction in accordance with any changes in allowable rent and income tables as published by HUD. 3.2 Rent Increases: A. On an annual basis, the City shall provide the Owner with the maximum allowable schedule of incomes and rents (less utility allowance appropriate for the Restricted Units) for the Property. B. Owner, its successors and assigns shall not charge rents for the Restricted Units in excess of the amounts set forth in the tables as adjusted from time -to -time by HUD. The Housing Manager shall notify Owner in writing of the adjusted allowable maximum incomes and rents. 4. Miscellaneous Provisions A. Owner shall adopt and include as part of its Management Plan (described in subsection G below), written tenant selection policies and criteria for the Units, that meet the following requirements: (a) Are consistent with the purpose of providing housing for Extremely Low and Very Low Income households; (b) Are reasonably related to program eligibility and the applicants' ability to perform the obligations of the lease; (c) Give reasonable consideration to the housing needs of households that would have a preference under 42 CFR §906.211 (Federal selection preferences for admission to Public Housing); (d) Provide for: (i) The selection of tenants from a written waiting list in the chronological order of their application, insofar as is practicable; and (ii) The prompt written notification to any rejected applicant of the grounds for any rejection; (e) Provide first priority in the selection of qualified eligible tenants to households that are referred by the City; and (f) Carry out the Affirmative Marketing procedures of the City of Santa Ana, which are designed to provide information and otherwise attract eligible persons from all racial, ethnic and gender groups in the housing market area to the units. Owner, the City shall cooperate to effectuate this provision prior to the initial renting, or upon occurrence of a vacancy, and the re -renting of any Restricted Units (24 CFR 92.351). B. Owner, its successors and assigns, shall not refuse to lease a unit to a holder of a rental voucher under 24 CFR part 982 (Housing Choice Voucher Program) or to a holder of a comparable document evidencing participation in a HOME tenant -based rental assistance program because of the status of the prospective tenant as a holder of such certificate of family participation, rental voucher, or comparable HOME tenant -based assistance document. C. Any lease of any of the Units must be for not less than one year, unless by mutual agreement between the tenant and the Owner. Should the tenant and Owner agree to a term of less than one year, said agreement shall be expressed in some type of written form, signed by the tenant, and maintained in the tenant's rental file held by the Owner. The lease may not contain any of the following provisions (in which references to "Owner" shall mean the Owner, its successors or assigns): (a) Agreement by the tenant to be sued, to admit guilt, or to a judgment in favor of the owner in a lawsuit brought in connection with the lease; (b) Agreement by the tenant that the owner may take, hold, or sell personal property of household members without notice to the tenant and a court decision on the rights of the parties. This prohibition, however, does not apply to an agreement by the tenant concerning disposition of personal property remaining in the housing Unit after the tenant has moved out of the Unit. The owner may dispose of this personal property in accordance with state law; (c) Agreement by the tenant not to hold the owner or the owner's agent legally responsible for any action or failure to act, whether intentional or negligent; (d) Agreement of the tenant that the owner may institute a lawsuit without notice to the tenant; (e) Agreement by the tenant that the owner may evict the tenant or household members without instituting a civil court proceeding in which the tenant has the opportunity to present a defense, or before a court decision on the rights of the parties; (f) Agreement by the tenant to waive any right to a trial by jury; (g) Agreement by the tenant to waive the tenant's right to appeal, or to otherwise challenge in court, a court decision in connection with the lease; and (h) Agreement by the tenant to pay attorney's fees or other legal costs even if the tenant wins in a court proceeding by the owner against the tenant. The tenant, however, may be obligated to pay costs if the tenant loses. D. Owner, its successors or assigns, must adhere to state law requirements with regard to termination of tenancy. B. Owner shall maintain the improvements on the Property in compliance with all applicable housing quality standards [24CFR 92.504 (c)(6)] and state and local code requirements and shall keep the Property free from any unreasonable accumulation of debris or waste materials. Owner shall also maintain in a healthy condition any landscaping planted on the Property. F. Owner covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof, there shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, religion, disability, sex, marital status, national origin or ancestry in the sale, lease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall the Owner itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property, as required by the Title VI of the Civil Rights Act of 1964, the Fair Housing Act (42 U.S.C. 3601-20) and all implementing regulations, and the Age Discrimination Act of 1975, and all implementing regulations. G. Not later than the closing for the construction loan for the Project, Owner shall submit to the Housing Manager a Management Plan in a form that is acceptable including, but not limited to, the components listed below. Approval of the Management Plan must be obtained from the Housing Manager not later than the time for the issuance of a certificate of occupancy for the Project. Owner shall manage the Restricted Units in accordance with the approved Management Plan, including such amendments as may be approved in writing from time to time by the Housing Manager, for the term of the income and rent restrictions contained in these Restrictions. The components of the Management Plan shall include: (a) Management Agent. Owner shall submit the name and qualifications of the proposed Management Agent. The City shall approve or disapprove the proposed Management Agent in writing based on the experience and qualifications of the Management Agent. (b) Management Agreement. Owner shall submit a copy of the proposed management agreement specifying the amount of the management fee, and the relationship and division of responsibilities between Owner and Management Agent. (c) Annual Budget and Projected Cash Flows. Prior to the issuance of a certificate of occupancy for the Project, and annually thereafter not later than one hundred fifty (150) days after the close of each calendar year thereafter, Owner shall submit a projected operating budget and cash flow to the Housing Manager. The budget and cash flow shall be in a form that is acceptable to the Housing Manager. (d) Tenant Selection Policies. Owner shall include in the Management Plan the tenant selection policies in accordance with Section 4, above. H. If at any time the City determines that the units are not being managed or maintained in accordance with the approved Management Plan, Owner shall change the management agent or the practices complained of, upon receipt of written notice from the City Manager. The City Manager may require Owner to change management practices or to terminate the management contract and designate and retain a different management agent. The management agreement shall provide that it is subject to termination by Owner without penalty, upon thirty (30) days prior written notice, at the direction of the City Manager. Within ten (10) days following a direction of the City Manager to replace the management agent, the Owner shall select another management agent or make other arrangements satisfactory to the City Manager or designee for continuing management of the units. 1. The covenants established in these Restrictions and any amendments hereto approved by the City, and Owner shall, without regard to technical classification and designation, be binding for the benefit and in favor of the City and their respective successors and assigns. These Restrictions shall remain in effect for fifty-five (55) years. In its discretion, the City may defer repayment of the Loan or the City may agree to such reasonable modifications to the requirements of these Restrictions, as they may determine are necessary for the continued maintenance and operation of the Restricted Units. The covenants against discrimination shall remain in effect for the period of these Restrictions. J. Owner shall not request disbursement of HOME funds until the funds are needed to pay eligible costs. The City shall have the right to disapprove any request if the City determines the request is for an ineligible item or is otherwise not in compliance with or inconsistent with the Loan Agreements and these Restrictions [24 CFR 92.504 (c)(10)]. K. Owner shall prepare, maintain and submit to the City, as appropriate, the following records and reports in compliance with 24 CFR 92.504 (c) (12): a. Annual Reports. Owner shall file with the City an Annual Report (herein referred to as the "Annual Report") within one hundred fifty (150) days following the end of each calendar year, commencing the Calendar Year following the issuance of the Certificate of Completion. The Annual ,Report shall contain a certification by Owner as to such information as the City Project Manager may then require, including, but not limited to, the following: (1) The fiscal condition of the Project, including the Annual Budget and Project Cash Flow report required by Section 4.G. (c) of this Agreement which shall include an audited financial statement for the previous calendar year that includes a balance sheet and a profit and loss statement indicating any surplus or deficit in operating accounts; a detailed itemized listing of income and expenses; and the amounts of any fiscal reserves. Such Annual Budget and audited financial statement shall be prepared in accordance with generally accepted accounting practices. (2) Any substantial physical defects in the Project, including a description of any major repair or maintenance work undertaken or needed in the previous and current years. Such statement shall describe what steps Owner has taken in order to maintain the Project in a safe and sanitary condition in accordance with applicable housing and building codes and the property standards set forth in 24 CFR 92.251. (3) The occupancy of the units indicating the income of each current resident and the current rents charged each resident and whether those rents include utilities, including records that demonstrate that the Project meets the requirements of 24 CFR 92.253 for tenant and participant protection under the HOME Program. (4) General management performance, including tenant relations and other relevant information. (5) Records that demonstrate that the units meet the affordability requirements of 24 CFR 92.252, for the required period of affordability. (6) Evidence of a currently paid hazard insurance policy in accordance with the requirements of Section 6 of the HOME Deed of Trust, with a loss payable endorsement naming the City as a loss payee together with other approved lenders (as their interests may appear), with a 'Replacement Cost Endorsement" in amount sufficient to prevent Owner or City from becoming a co-insurer under the terms of the policy, but in any event in an amount not less than 100% of the then full replacement cost, to be determined at least once annually and subject to reasonable approval by the Executive Director. (7) Evidence of a currently paid liability insurance policy, naming the City as additional insured and in a form approved by the City Attorney with coverage as described in the Loan Agreements. (8) Termite reports pertaining to the Property every fifth (5") year. (9) Such other information as may be reasonably required by the City Manager or his/her designee. b. Records and Audits. Owner shall maintain the following general program records, and make them available for inspection by the City, the State or HUD: (1) records which demonstrate that the project meets the property standard specified in 24 CFR 92.251; (2) records, for each HOME Assisted Unit, which demonstrates that the project meets the requirements of 24 CFR 92.252. (3) records which demonstrate compliance with the tenant and participant protections, as specified in 24 Section 29.253; (4) records which demonstrate compliance with the Equal Opportunity and Fair Housing requirements outlined in these Restrictions, including: (A) data on the extent to which each racial and ethnic group and single head of household (by gender of head of household) have applied for, participated in, or benefited from, any program or activity funded in whole or in part with HOME funds; (B) documentation of actions undertaken to meet the equal opportunity requirements of 24 CFR 92.350, which implements Section 3 of the Housing Development Act of 1968, as amended (12 U.S.C. 1701u); (C) documentation and data on the steps taken to implement Owner's outreach programs to minority-owned and women -owned businesses to meet the minority outreach requirements of 24 CFR 92.350; (5) documentation of the steps taken to carry out an affirmative marketing program in accordance with 24 CFR 92.351, if applicable; (6) if applicable, records which demonstrate compliance with the requirements relating to relocation of displaced persons, as described in 24 CFR 92.353. At a minimum, these shall include project occupancy lists identifying the name and address of all persons occupying the project property up until the date of the date on which Owner obtained ownership of the Property; (7) records concerning lead-based paint in accordance with 24 CFR 92.355; (8) if applicable, records which support any requests for waivers of the conflict of interest prohibition as stated in 24 CFR 92.356; (9) records of certifications of contractor qualifications as they relate to the debarment and suspension requirement as stated in 24 CFR 92.357 and 24 CFR Part 24; and (10) any other reports issued by other monitoring agencies. C. All records pertaining to each calendar year of HOME funds must be retained for the most recent five year period, except that for rental housing projects, records may be retained for five years after the project completion date; except that records of individual tenant income verifications, project rents and project inspections must be retained for the most recent five year period, until five years after the affordability period terminates (24 CFR 92.508). Owner shall cooperate with the City to retain all books and records relevant to the Loan Agreement for a minimum of five years after the expiration of the Loan Agreement and any and all amendments hereto, or for five years after the conclusion or resolution of any and all audits or litigation relevant to the Loan Agreement, whichever is later. The City, the State, the Office of the Inspector General of HUD, and/or their representatives shall have unrestricted reasonable access to all locations, books, and records for the purpose of monitoring, auditing, or otherwise examining said locations, books, and records with or without prior notice. d. If so directed by the City or HUD upon tennination of the Loan Agreement, Owner shall cause all records, accounts, documentation and all other materials relevant to the work to be delivered to the City or HUD, as depository. e. All records, accounts, documentation and other materials relevant to the Project shall be accessible at any time to the authorized representatives of the City, or HUD, on reasonable prior notice, for the purpose of examination or audit. f. Pursuant to 24 CFR Part 44, the City shall perform an annual audit at the close of each calendar year in which these Restrictions are in effect. Owner shall reasonably cooperate with City in performing such audit. g. Owner shall permit the City to perform an Annual Physical Inspection of the Property with at least seven (7) days notice. Owner shall cooperate with this Inspection and shall take all steps necessary to quickly correct any code deficiencies identified during the Inspection. L. The City is the beneficiary of the terms and provisions of these Restrictions and the covenants herein, both for and in its own right and for the purposes of protecting the interests of the community and other parties, public or private, for whose benefit these Restrictions and the covenants running with the land have been provided. The City shall have the right if the covenants are breached, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which they or any other beneficiaries of these Restrictions and covenants are entitled. M. The covenants and agreements contained herein shall run with the land and not be personal obligations of Owner. Upon the sale, conveyance or other transfer of the Property (a "Transfer") and the assumption of the obligations hereunder by a transferee, Owner's liability for performance shall be terminated as to any obligation to be performed hereunder after the date of such Transfer. N. The Loan Agreement and all of its attachments shall be enforceable by the City in accordance with the terns thereof. Each of the Loan Agreement, the Affordability Restrictions on Transfer of Property, the HOME Note and the HOME Deed of Trust provide a means of enforcement by the City if Owner is in breach of its obligations hereunder and thereunder, including liens on the Property, deed restrictions and covenants running with the land [24 CFR 92.504 (c) (13)]. IN WITNESS WHEREOF, the parties hereto have executed these Affordability Restrictions on Transfer of Property as of the date and year first stated above. ATTEST: CITY OF SANTA ANA Ma •ia D. 3uizar Cyn is J. C Clerk of the Council Interna City APPROVED AS TO FORM Sonia R. Carvalho C Attorney RECOMMENDED F R APPROVAL: Robert C. Cortez Acting Executive Director Community Development Agency 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 July 24, 2017 before me, Rosa A. Flores, Notary Public (insert name and title of the officer) personally appeared Cynthia J. Kurtz who proved to me on the basis of satisfactory evidence to be the perso%Wwhose nameXis-/are subscribed to the within instrument and acknowledged to me that#e/she/they executed the same in bis/her/thair authorized capacityXies), 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. ° ROSA A. FLORES Commission # 2057129 Notary Public • California g Orange County Signature ' l�'"� (Seal) OWNER: Santa Ana Arts Collective, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, A California limited liability company, its administrative a eral partner By: Kasey Burke, Vice ent By: W Affordable XVIII, LLC, a Cali run limited liability company its mina g general partner By: N Graham P. Esple'�kIones, President 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 Los Angeles mi July 13, 2017 before me, Rutzel M. Castillo, Notary Public (insert name and title of the officer) personally appeared Kasey Burke 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. mra. RUTZEL M. CASTILLO WITNESS my hand and official seal. Commission N 2100109 Notuy PupOc - California IS Lot AOpNas COU* Signature/6/,-� (Seal) OWNER: Santa Ana Arts Collective, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, A California limited liability company, its administrative general partner By: SIGNED IN COUNTERPART Kasey Burke, Vice President By: WCH Affordable XVIII, LLC, a California limited liability company its managing gener. partner By: Sandra Gibbons, Mecutive Vice President / CFO CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE 5 1189 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 1 County of Orange J} On July 13, 2017 Date personally appeared before me, Leanne Truofreh, Notary Public Here Insert Name and Title of the Officer Sandra Gibbons Nome(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(,$) whose name(6) is/ace subscribed to the within instrument and acknowledged to me that Ire/she/tFvey executed the same in his/her/their authorized capacity(4as), and that by.hWher/their signature(B) on the instrument the person(gj, or the entity upon behalf of which the person() acted, executed the instrument. LEANNE TRUOFREH w,, m Commission # 2064657 Notary Public - California z Z ' Orange County n My Comm. Expires May 12, 2098 Place Notary Seal and/or Stamp Above 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 Signature 4 Notary Pu i V r 1 1 V IY/iL Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Affordability Restrictions, Document Date: July5,2017 NumberofPages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian of Conservator ❑ Other: Signer is Representing: 02017 National Notary Association Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner— ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian of Conservator ❑ Other: Signer is Representing: Exhibit "A" Legal Description Real properly in the City of Santa Ana, County of Orange, State of California, described as follows: I91d3l13-W.11 THAT PORTION OF SECTION 12, TOWNSHIP 5 SOUTH, RANGE 10 WEST, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, BEING A PORTION OF THE LAND ALLOCATED TO JACOB ROSS IN DECREE OF PARTITION OF THAT RANCHO SANTIAGO DE SANTA ANA, RECORDED IN BOOK "B" OF JUDGEMENTS OF 17TH JUDICIAL DISTRICT COURT OF CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID SECTION 12, BEING ALSO THE INTERSECTION OF THE CENTER LINES OF SEVENTEENTH STREET AND MAIN STREET AS SAID INTERSECTION IS SHOWN ON A MAP FILED IN BOOK 11 PAGE 18 OF RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY, CALIFORNIA; THENCE ALONG THE NORTHERLY LINE OF SAID NORTHEAST QUARTER, NORTH 89° 56' 40" WEST 289.89 FEET; THENCE SOUTH 00 16' 25" WEST 230.00 FEET; THENCE PARALLEL WITH THE NORTHERLY LINE OF SAID NORTHEAST QUARTER, SOUTH 89° 56'40" EAST 289.78 FEET TO THE EASTERLY LINE OF SAID NORTHEAST QUARTER; THENCE ALONG SAID EASTERLY LINE NORTH 00 16'40" EAST 230.00 FEET TO THE POINT OF BEGINNING. EXCEPT THE NORTHERLY 40.00 FEET THEREOF. ALSO EXCEPT THE EASTERLY 35.00 FEET THEREOF. APN: 005-153-19 and 005-153-20 RECORDING REQUESTED BY FIRST AMERICAN TITLE INSURANCE Co. NATIONAL COMMERCIAL SERVICES FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana Clerk of the Council 20 Civic Center Plaza P.O. Box 1988 (M-30) Santa Ana, California 92702 Attn: Clerk of the Council NCS f1~ -'-0 P fr 7 3 Recorded in Official Records, Orange County Hugh Nguyen,Clerk-Recorder 11111111II1111I11111111I111111111I111IIIII1111111111111111111 NO FEE *$ R 0 0 0 9 4 4 2 a 0 7$* 2017000308363 3:25 pm 07126117 7 405 Al B A36 12 0.00 0.00 0.00 0.00 33.00 0.00 0.00 0.00 OmGINAL FIRST AMENDED AND RESTATED INCLUSIONARY DEED OF TRUST AND ASSIGNMENT OF RENTS THIS FIRST AMENDED AND RESTATED INCLUSIONARY DEED OF TRUST AND ASSIGNMENT OF RENTS (the "Deed of Trust") made this S^ day of July, 2017, by and between Santa Ana Arts Collective, LP, a California limited partnership (the "Trustor"), AmeriNat, a Minnesota corporation (the "Trustee"), and the City of'Santa Ana, a charter city and municipal corporation (the "Beneficiary") hereby amends and restates the original unrecorded Inclusionary Deed of Trust executed May 1, 2016. Trustor, in consideration of the promises herein recited and the trust herein created, irrevocably grants, transfers, conveys and assigns to Trustee, in trust, with power of sale, the property located in the City of Santa Ana, County of Orange, State of California, described in the attached Exhibit A and more commonly known as 1666 N. Main Street, Santa Ana, California (the "Property"); TOGETHER with all the improvements now or hereafter erected on the Property, and all easements, rights, appurtenances and all fixtures now or hereafter attached to the Property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the Property covered by this Inclusionary Deed of Trust; provided that so long as Trustor is not in default hereunder, it shall be permitted to control the Property in accordance with the requirements of that certain CDBG and Inclusionary Program Loan Agreement entered into between the Trustor and the Beneficiary, dated concurrently herewith, which Agreements are both on file with the Beneficiary as a public record; TOGETHER with the right, power and authority during the continuance of these Trusts, to collect the rents, issues, and profits of the Property, reserving unto the Trustor the right, prior to any default by Trustor in payment of the indebtedness secured by this Deed of Trust or in the performance of any agreement under this Deed of Trust, to collect and retain these rents, issues and profits as they become due and payable; and, TOGETHER with all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected, or hereafter to be erected, on the Property RECORDING REQUESTED BY FIRSTAMERICAN TITLE INSURANCE CO. NATIONAL COMMERCIAL SERVICES FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana Clerk of the Council 20 Civic Center Plaza P.O. Box 1988 (M-30) Santa Ana, California 92702 Attn: Clerk of the Council NCS -713431- 5/kl FIRST AMENDED AND RESTATED INCLUSIONARY DEED OF TRUST AND ASSIGNMENT OF RENTS THIS FIRST AMENDED AND RESTATED INCLUSIONARY DEED OF TRUST AND ASSIGNMENT OF RENTS (the "Deed of Trust") made this 5h day of July, 2017, by and between Santa Ana Arts Collective, LP , a California limited partnership (the 'Trustor"), AmeriNat, a Minnesota corporation (the "Trustee"), and the City of Santa Ana, a charter city and municipal corporation (the "Beneficiary") hereby amends and restates the original unrecorded Inclusionary Deed of Trust executed May 1, 2016. Trustor, in consideration of the promises herein recited and the trust herein created, irrevocably grants, transfers, conveys and assigns to Trustee, in trust, with power of sale, the property located in the City of Santa Ana, County of Orange, State of California, described in the attached Exhibit A and more commonly known as 1666 N. Main Street, Santa Ana, California (the 'Property"); TOGETHER with all the improvements now or hereafter erected on the Property, and all easements, rights, appurtenances and all fixtures now or hereafter attached to the Property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the Property covered by this Inclusionary Deed of Trust; provided that so long as Trustor is not in default hereunder, it shall be permitted to control the Property in accordance with the requirements of that certain CDBG and Inclusionary Program Loan Agreement entered into between the Trustor and the Beneficiary, dated concurrently herewith, which Agreements are both on file with the Beneficiary as a public record; TOGETHER with the right, power and authority during the continuance of these Trusts, to collect the rents, issues, and profits of the Property, reserving unto the Trustor the right, prior to any default by Trustor in payment of the indebtedness secured by this Deed of Trust or in the performance of any agreement under this Deed of Trust, to collect and retain these rents, issues and profits as they become due and payable; and, TOGETHER with all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected, or hereafter to be erected, on the Property which are necessary to the complete and comfortable use and occupancy of such building or buildings for the purposes for which they were or are to be erected, including all other goods and chattels and personal property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the one herein described and referred to, and all renewals or replacements thereof or articles in substitution therefor, whether or not the same are, or shall be attached to said building or buildings in any manner; and all of the foregoing, together with the Property, is herein referred to as the "Security"; To have and to hold the Security together with acquittances to the Trustee, its successors and assigns forever; TO SECURE to the Beneficiary (a) the repayment of the sums evidenced by a Promissory Note to the Beneficiary executed by Trustor of even date herewith in the principal amount of FOUR MILLION SEVEN HUNDRED AND SEVENTY FIVE THOUSAND DOLLARS ($4,775,000.00) (the "Inclusionary Promissory Note"); (b) the performance of the covenants and agreements of Borrower contained in a certain Agreement as hereinafter defined; and (c) the payment of all other sums, with interest thereon, advanced in accordance herewith to protect the security of this Deed of Trust; and the performance of the covenants and agreements of Trustor contained herein. TRUSTOR AND THE BENEFICIARY COVENANT AND AGREE AS FOLLOWS: 1. The A eer ement. This Deed of Trust is executed and delivered, along with the Inclusionary Promissory Note and the Loan Agreement, to benefit the Property. A copy of said Loan Agreement is on file as a public record with the Beneficiary and is incorporated herein by reference (the "Agreement"). Trustor acknowledges that but for the execution of this Deed of Trust, the Beneficiary would not enter into the Agreement or Inclusionary Promissory Note secured by this Deed of Trust. 2. Trustor's Estate. Trustor is lawfully seized of the estate hereby conveyed and has the right to grant and convey the Security; that other than this Deed of Trust, the Security is not encumbered except for obligations secured by deeds of trust, or any other security agreement, to secure financing or refinancing for the purchase and rehabilitation of the Property. 3. RepVnent of the Loan. Trustor will promptly repay, when due, the principal loan amount, as required by the City Promissory Note secured by this Deed of Trust. 4. Subordination. This obligation secured by this Deed of Trust shall be subordinated to the Senior Loan and AHSC Loan, but the City's Affordability Restrictions on Transfer of Property shall remain in first place with respect to the Senior Loan and subordinate with respect to the AHSC Loan. 5. Prior Morteages and Deeds of Trust• Charges; Liens. Trustor shall perform all of Trustor's obligations under any mortgage, deed of trust or other security agreement with a lien which has priority over this Instrument, including Trustor's covenants to make payments when due (subject to an applicable notice and cure provisions). Trustor will pay all taxes, assessments and other charges, fines and impositions attributable to the Security which may attain a priority over this Deed of Trust, by Trustor making any payment, when due, directly to the payee thereof. Trustor 2 will promptly furnish to the Beneficiary all notices of amounts due under this paragraph, and in the event Trustor makes payment directly, Trustor will promptly discharge any lien which has priority over this Deed of Trust; provided that Trustor will not be required to discharge the lien of the Deed of Trust securing any senior lender or any other lien described in this paragraph so long as Trustor will agree in writing to the payment of the obligation secured by such lien in a manner acceptable to the Beneficiary, or will, in good faith, contest such lien by, or defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement of the lien or forfeiture of the Security or any part thereof. 6. Hazard Insurance. Trustor will keep the Security insured by such insurance policies in such amounts and for such periods as called for in the Agreement. All insurance policies and renewals thereof will include a standard mortgagee clause with standard lender's endorsement in favor of the holder of any senior lender and the Beneficiary as their interests may appear and in a form acceptable to the Beneficiary. The Beneficiary shall have the right to hold, or cause its designated agent to hold, the policies and renewals thereof, and Trustor shall promptly furnish to the Beneficiary, or its designated agent, the original insurance policies or certificates of insurance, all renewal notices and all receipts of paid premiums subject to the rights of any senior lender. In the event of loss, Trustor will give prompt notice to the insurance carrier and the Beneficiary or its designated agent. The Beneficiary, or its designated agent, may make proof of loss if not made promptly by Trustor. The Beneficiary shall receive 30 days advance notice of cancellation of any insurance policies required under this Section. Unless the Beneficiary and Trustor otherwise agree in writing, insurance proceeds, subject to the rights of any senior lender, will be applied to restoration or repair of the Security damaged, provided such restoration or repair is economically feasible and the security of this Deed of Trust is not thereby impaired. If such restoration or repair is not economically feasible or if the security of this Deed of Trust would be impaired, again, subject to the rights of any senior lender, the insurance proceeds will be used to repay the loan secured by this Deed of Trust, with the excess, if any, paid to Trustor. If the Security is abandoned by Trustor, or if Trustor fails to respond to the Beneficiary, or its designated agent within 30 days from the date notice is mailed by either of them to Trustor that the insurance carrier offers to settle a claim for insurance benefits, the Beneficiary, or its designated agent, is authorized to collect and apply the insurance proceeds at the Beneficiary's option either to restoration or repair of the Security or to repay the loan. If the Security is acquired by the Beneficiary, all right, title and interest of Trustor in and to any insurance policy and in and to the proceeds thereof resulting from damage to the Security prior to the sale or acquisition will pass to the Beneficiary to the extent of the sums secured by this Deed of Trust immediately prior to such sale or acquisition subject to the rights of any senior lender. 7. Preservation and Maintenance of Security. Trustor will keep the Security in good repair and will not commit waste or permit impairment or deterioration of the Security. 8. Protection of the Beneficiary's Security. If Trustor fails to perform the covenants and agreements contained in this Deed of Trust or if any action or proceeding is commenced which materially affects the Beneficiary's interest in the Security, including, but not limited to, default under the Deed of Trust securing any senior lender, eminent domain, insolvency, code enforcement, or arrangements or proceedings involving a bankrupt or decedent, then the Beneficiary, at the Beneficiary's option, upon notice to Trustor, may make such appearances, disburse such sums and 3 take such action as it determines necessary to protect the Beneficiary's interest, including, but not limited to, disbursement of reasonable attorneys' fees and entry upon the Security to make repairs. Any amounts disbursed by the Beneficiary pursuant to this paragraph, with interest thereon, will become an indebtedness of Trustor secured by this Deed of Trust. Unless Trustor and the Beneficiary agree to other terms of payment, such amount will be payable upon notice from the Beneficiary to Trustor requesting payment thereof, and will bear interest from the date of disbursement at the rate payable from time to time on outstanding principal under the Inclusionary Promissory Note unless payment of interest at such rate would be contrary to applicable law, in which event such amounts will bear interest at the highest rate permissible under applicable law. Nothing contained in this paragraph will require the Beneficiary to insure any expense or take any action hereunder. 9. Inspection. The Beneficiary may make, or cause to be made, reasonable entries upon and inspections of the Security during normal business hours; provided that the Beneficiary will give Trustor reasonable notice of inspection. 10. Forbearance by the Beneficiary Not a Waiver. Any forbearance by the Beneficiary in exercising any right or remedy will not be a waiver of the exercise of any such right or remedy. The procurement of insurance or the payment of taxes or other liens or charges by the Beneficiary will not be a waiver of the Beneficiary's right to accelerate the maturity of the indebtedness secured by this Deed of Trust. 11. Remedies Cumulative. All remedies provided in this Deed of Trust are distinct and cumulative to any other right or remedy under this Deed of Trust or any other document, or afforded by law or equity, and may be exercised concurrently, independently or successively. 12. Successors and Assigns Bound. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the Beneficiary and Trustor subject to the provisions of this Deed of Trust. 13. Joint and Several Liability. All covenants and agreements of Trustor shall be joint and several. 14. Notice. Except for any notice required under applicable law to be given in another manner, (a) any notice to Trustor provided for in this City Deed of Trust will be given by certified mail, return receipt requested, addressed to Trustor at 1640 Sepulveda Blvd, Suite 425, Los Angeles, California, 90025 with a copy to Bank of America CDC Special Holding Company, Inc. Community Development Banking,MAI-225-02.-02, 225 Franklin Street, Boston, MA 02110 and WCH Affordable XVIII, LLC Attn: Graham Espley-Jones, 151 Kalmus Drive, 05, Costa Mesa, CA 92626, (b) any notice to the Beneficiary will be given by certified mail, return receipt requested, to the Beneficiary at 20 Civic Center Plaza, P.O. Box 1988, Santa Ana, California 92702, Attention: Housing Manager, or at such other address as the Beneficiary may designate by notice to Trustor as provided above, and (c) to Trustee at 8121 E. Florence Avenue, Downey, California 90240. Notice shall be effective as of the date received as shovm on the return receipt. 15. Governing Law. This Deed of Trust shall be governed by the laws of the State of California with venue in Orange County. 16. Severability. In the event that any provision or clause of this Deed of Trust or the City Loan Note conflicts with applicable law, such conflict will not affect other provisions of this Deed of Trust or the Inclusionary Promissory Note which can be given effect without the conflicting provision, and to this end the provisions of the Deed of Trust and the City Loan Note are declared to be severable. 17. Captions. The captions and headings in this Deed of Trust are for convenience only and are not to be used to interpret or define the provisions hereof. 18. Default in Foreclosure: Remedies. Upon Trustor's breach of any covenant or agreement of Trustor in this Deed of Trust or the Inclusionary Promissory Note secured by this Deed of Trust, including, but not limited to, the covenants to pay, when due, any sums secured by this Deed of Trust, the Beneficiary may declare all sums secured by this Deed of Trust immediately due and payable by delivering to Trustor notice thereof specifying: (1) The breach; (2) the action required to cure such breach; (3) a date not less than 30 days from the date the notice is received by Trustor as shown on the return receipt, by which such breach is to be cured provided, however, that if such default is not reasonable susceptible to being cured within 30 days, Trustor shall have a reasonable period to cure the defect so long as Trustor is diligently prosecuting the cure to completion; and (4) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Deed of Trust and sale of the Security. The notice will also inform Trustor of Trustor's right to reinstate after acceleration and the right to bring a court action to assert the non-existence of default or any other defense of Trustor to acceleration and sale. Notwithstanding anything to the contrary contained herein, a "default" shall not include (i) a transfer of a general partner's interest in Trustor when made in connection with the exercise by the Trustor's limited partner (the "Limited Partner") of its rights upon a default by a general partner under the Trustor's Amended and Restated Limited Partnership Agreement (the "Partnership Agreement") or upon a general partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting general partner is made within thirty (30) days of such default or, if such removal and substitution cannot reasonably be completed within thirty (30) days, so long as the Limited Partner commences to take action to remove and substitute the general partner with a reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the Property to the managing general partner of Trustor pursuant to the right of first refusal or to the general partners of Trustor pursuant to the purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest render and in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of a limited partner interest or an interest in a limited partner of the Trustor, (v) any sale, transfer or other disposition of an interest in a limited partner of the Borrower. If the breach is not cured on or before the date specified in the notice or such longer period as provided above or in the Inclusionary Promissory Note or the Agreement, the Beneficiary, at the Beneficiary's option, may: (a) declare all of the sums secured by this Deed of Trust to be immediately due and payable without further demand and may invoke the power of sale and any other remedies permitted by California law; (b) either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its security, enter upon the Security and take possession thereof (or any part thereof) 5 and of any of the Security, in its own name or in the name of the Trustee, and do any acts which it deems necessary or desirable to preserve the value or marketability of the Property, or part thereof or interest therein, increase the income therefrom or protect the security thereof. The entering upon and taking possession of the Security shall not cure or waive any breach hereunder or invalidate any act done in response to such breach and, notwithstanding the continuance in possession of the Security, the Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust, or by law upon occurrence of any uncured breach, including the right to exercise the power of sale; (c) continence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof, (d) deliver to the Trustee a written declaration of default and demand for sale, pursuant to the provisions for notice of sale found at California Civil Code Sections 2924, et sq., as amended from time to time; or (e) exercise all other rights and remedies provided herein, in the instruments by which Trustor acquires title to any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or provided by law. In addition, if an Event of Default occurs hereunder or under the Note, prior to taking any remedy under this Deed of Trust or any other document evidencing or securing this Note, Beneficiary shall first give notice of the occurrence of such Event of Default to the Limited Partner and the Limited Partner shall have not less than 30 days to cure such Event of Default, provided if in order to cure such Event of Default the Limited Partner gives notice to the Beneficiary that Limited Partner must remove and replace the general partner or general partners of Trustor, Limited Partner shall have until 30 days following the effective date of such removal and replacement to cure such Event of Default. The Beneficiary shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph, including, but not limited to, reasonable attorneys' fees. 19. Trustor's 'Right to Reinstate. Notwithstanding the Beneficiary's acceleration of the sums secured by this Deed of Trust, Trustor will have the right to have any proceedings begun by the Beneficiary to enforce this Deed of Trust discontinued at any time prior to 5 days before sale of the Security pursuant to the power of sale contained in this Deed of Trust or at any time prior to entry of a judgment enforcing this Deed of Trust if: (a) Trustor pays the Beneficiary all sums which would be then due under this Deed of Trust and no acceleration under the Inclusionary Promissory Note has occurred; (b) Trustor cures all breaches of any other covenants or agreements of Trustor contained in this Deed of Trust; (c) Trustor pays all reasonable expenses incurred by the Beneficiary and the Trustee in enforcing the covenants and agreements of Trustor contained in this Deed of Trust and in enforcing the Beneficiary's and the Trustee's remedies, including, but not limited to, reasonable attorneys' fees; and (d) Trustor takes such action as the Beneficiary may reasonably require to assure that the lien of this Deed of Trust, the Beneficiary's interest in the Security and Trustor's obligation to pay the sums secured by this ,Deed of Trust shall continue unimpaired. Upon such payment and cure by Trustor, this Deed of Trust and the obligations secured hereby will remain in full force and effect as if no acceleration had occurred. 20. Acceptance by Trustee. Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party to this Deed of Trust of pending sale under any other deed of trust or any action or proceeding in which Trustor, Beneficiary, or Trustee shall be a party unless brought by Trustee. 21. Reconveyance. Upon payment of all sums secured by this Deed of Trust, the Beneficiary will request the Trustee to reconvey the Security and will surrender this Deed of Trust and the Inclusionary Promissory Note to the Trustee. The Trustee will reconvey the Security without warranty and without charge to the person or persons legally entitled thereto. Such person or persons will pay all costs of recordation, if any. 22. Substitute Trustee. The Beneficiary, at the Beneficiary's option, may from time to time remove the Trustee and appoint a successor trustee to any Trustee appointed hereunder. The successor trustee will succeed to all the title, power and duties conferred upon the Trustee herein and by applicable law. 23. Request for Notice. Trustor requests that copies of the notice of default and notice of sale be sent to Trustee at the address set forth in Section 14 above. 24. Nonrecourse Liability. Neither Trustor nor any partner of Trustor shall have any personal liability under the Agreement, Inclusionary Promissory Note, and this Deed of Trust and any judgment, decree or order for payment of money obtained in any action to enforce the obligation of Trustor to repay the loan evidenced by such documents shall be enforceable against Trustor only to the extent of Trustor's interest in the Property. (Signatures on Following Page) IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first written above. SANTA ANA ARTS COLLECTIVE, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, a California limited liability company, its administrative general partner By: Kasey Burke, Vice ent By: WCH Afforda e XVIII, LLC, a California limi liability company, its managing gener armer By: IN COUNTERPART Graham P. Esple}N,Iones, President 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 Los Angeles On July 13, 2017 before me, Rutzel M. Castillo, Notary Public (insert name and title of the officer) personally appeared Kasey Burke 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 RUIL« Commission n 21,,.. - b Notary Public - Caldonua Los Angeles County Expires Mar 19, 20191 (Seal) Cis mmisslon k 21tt1-LO Notary Pubme _ 00469 C0rornia n Lot Angeles Count. IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first written above. SANTA ANA ARTS COLLECTIVE, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, a California limited liability company, its administrative general partner LM SIGNED IN COUNTERPART Kasey Burke, Vice President By: WCH Affordable XVIII, LLC, a California limited liability company, its managing general partner By: Sandra Gibbons, Ex cutive Vice President / CFO CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 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 July 13, 2017 before me, Leanne Truofreh, Notary Public Date Here Insert Name and Title of the Officer personally appeared Sandra Gibbons Names) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(y) whose name(6) is/are subscribed to the within Instrument and acknowledged to me that-he/she/they executed the same in his/her/tkreir authorized capacity(ies), and that by kris/her/ther signature() on the instrument the person), or the entity upon behalf of which the person(4 acted, executed the instrument. Place Notary Seal and/or Stamp Above 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. I OP Signature Signature of tory Public Vr11V1YML --- Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: 1st Amended & Restated Inclusionary DOT Document Date: July 5, 2017 Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner— ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian of Conservator ❑ Other: Signer is Representing: 02017 National Notary Association Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner— ❑ Limited ❑ General ❑ Individual ❑ Attorney In Fact ❑ Trustee ❑ Guardian of Conservator ❑ Other: Signer is Representing: ..,,, LEA NNE TRUOFREH . Commission # 2064657 't®�' +� Notary Public - California z `- Z Orange County n My Comm. Expires May 12, 2018 N Place Notary Seal and/or Stamp Above 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. I OP Signature Signature of tory Public Vr11V1YML --- Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: 1st Amended & Restated Inclusionary DOT Document Date: July 5, 2017 Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner— ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian of Conservator ❑ Other: Signer is Representing: 02017 National Notary Association Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner— ❑ Limited ❑ General ❑ Individual ❑ Attorney In Fact ❑ Trustee ❑ Guardian of Conservator ❑ Other: Signer is Representing: Exhibit "A" Legal Description Real property in the City of Santa Ana, County of Orange, State of California, described as follows: PARCEL A: THAT PORTION OF SECTION 12, TOWNSHIP 5 SOUTH, RANGE 10 WEST, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, BEING A PORTION OF THE LAND ALLOCATED TO JACOB ROSS IN DECREE OF PARTITION OF THAT RANCHO SANTIAGO DE SANTA ANA, RECORDED IN BOOK "B" OF JUDGEMENTS OF 17TH JUDICIAL DISTRICT COURT OF CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID SECTION 12, BEING ALSO THE INTERSECTION OF THE CENTER LINES OF SEVENTEENTH STREET AND MAIN STREET AS SAID INTERSECTION IS SHOWN ON A MAP FILED IN BOOK 11 PAGE 18 OF RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY, CALIFORNIA; THENCE ALONG THE NORTHERLY LINE OF SAID NORTHEAST QUARTER, NORTH 89° 56' 40" WEST 289.89 FEET; THENCE SOUTH 00 16' 25" WEST 230.00 FEET; THENCE PARALLEL WITH THE NORTHERLY LINE OF SAID NORTHEAST QUARTER, SOUTH 89° 56' 40" EAST 289.78 FEET TO THE EASTERLY LINE OF SAID NORTHEAST QUARTER; THENCE ALONG SAID EASTERLY LINE NORTH 00 16'40" EAST 230.00 FEET TO THE POINT OF BEGINNING. EXCEPT THE NORTHERLY 40.00 FEET THEREOF. ALSO EXCEPT THE EASTERLY 35.00 FEET THEREOF. APN: 005-153-19 and 005-153-20 RECORDING REQUESTED BY FIRST AMERICAN TITLE INSURANCE CO. NATIONAL COMMERCIAL SERVICES NCS -Ti $4131- SA ( FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana Clerk of the Council 20 Civic Center Plaza P,O. Box 1988 (M-30) Santa Ana, California 92702 Attn: Clerk of the Council '-.1co7 -173 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder 1 11111 ) 111111l1[l 11111111 11th 1lll11111111111l11111l[ l ] 111 NO FEE * $ R 0 0 0 9 4 4 2 a Q 9 8* 2017000308365 3,25 pm 07126117 7 405 Al b A36 12 0.00 0.00 0.00 0.00 33.00 0.00 0.00 0.00 ORIGINAL FIRST AMENDED AND RESTATED CDBG DEED OF TRUST AND ASSIGNMENT OF RENTS THIS FIRST AMENDED AND RESTATED CABG DEED OF TRUST AND ASSIGNMENT OF RENTS (the "Deed of Trust") made this 5`h day of July, 2017 between Santa Ana Arts Collective, LP, a California limited partnership (the "Trustor"), AmeriNat, a Minnesota corporation (the "Trustee"), and the City of Santa Ana, a charter city and municipal corporation (the "Beneficiary") hereby amends and restates the original unrecorded CDBG Deed of Trust executed May 1, 2016.. Trustor, in consideration of the promises heroin recited and the trust herein created, irrevocably grants, transfers, conveys and assigns to Trustee, in trust, with power of sale, the property located in the City of Santa Ana, County of Orange, State of California, described in the attached Exhibit A and more commonly known as 1666 N. Main Street, Santa Ana, California (the "Property"); TOGETHER with all the improvements now or hereafter erected on the Property, and all easements, rights, appurtenances and all fixtures now or hereafter attached to the Property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the Property covered by this CDBG Deed of Trust; provided that so long as Trustor is not in default hereunder, it shall be permitted to control the Property in accordance with the requirements of that certain CDBG and Inclusionary Program Loan Agreement entered into between the Trustor and the Beneficiary, dated concurrently herewith, which Agreements are both on file with the Beneficiary as a public record; TOGETHER with the right, power and authority during the continuance of these Trusts, to collect the rents, issues, and profits of the Property, reserving unto the Trustor the right, prior to any default by Trustor in payment of the indebtedness secured by this Deed of Trust or in the performance of any agreement under this Deed of Trust, to collect and retain these rents, issues and profits as they become due and payable; and, TOGETHER with all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected, or hereafter to be erected, on the Property THIS DOCUMENTWAS SIGNED IN COUNTERPART AND L9 COBLE�ONONE RECRDADOUME RECORDING REQUESTED BY FIRST AMERICAN TITLE INSURANCE CO. NATIONAL COMMERCIAL SERVICES NCS -1%343i- SA 1 FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana Clerk of the Council 20 Civic Center Plaza P.O. Box 1988 (M-30) Santa Ana, California 92702 Attn: Clerk of the Council FIRST AMENDED AND RESTATED CDBG DEED OF TRUST AND ASSIGNMENT OF RENTS THIS FIRST AMENDED AND RESTATED CDBG DEED OF TRUST AND ASSIGNMENT OF RENTS (the "Deed of Trust") made this 5' day of July, 2017 between Santa Ana Arts Collective, LP , a California limited partnership (the "Trustor"), AmeriNat, a Minnesota corporation (the "Trustee"), and the City of Santa Ana, a charter city and municipal corporation (the "Beneficiary") hereby amends and restates the original unrecorded CDBG Deed of Trust executed May 1, 2016. , Trustor, in consideration of the promises herein recited and the trust herein created, irrevocably grants, transfers, conveys and assigns to Trustee, in trust, with power of sale, the property located in the City of Santa Ana, County of Orange, State of California, described in the attached Exhibit A and more commonly known as 1666 N. Main Street, Santa Ana, California (the 'Property"); TOGETHER with all the improvements now or hereafter erected on the Property, and all easements, rights, appurtenances and all fixtures now or hereafter attached to the Property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the Property covered by this CDBG Deed of Trust; provided that so long as Trustor is not in default hereunder, it shall be permitted to control the Property in accordance with the requirements of that certain CDBG and Inclusionary Program Loan Agreement entered into between the Trustor and the Beneficiary, dated concurrently herewith, which Agreements are both on file with the Beneficiary as a public record; TOGETHER with the right, power and authority during the continuance of these Trusts, to collect the rents, issues, and profits of the Property, reserving unto the Trustor the right, prior to any default by Trustor in payment of the indebtedness secured by this Deed of Trust or in the performance of any agreement under this Deed of Trust, to collect and retain these rents, issues and profits as they become due and payable; and, TOGETHER with all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected, or hereafter to be erected, on the Property MIS DOCUMENT WAS SIGNED IN COUNTERPART AND IS TO BE ONE RECORDANBLE DOCUMENT which are necessary to the complete and comfortable use and occupancy of such building or buildings for the purposes for which they were or are to be erected, including all other goods and chattels and personal property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the one herein described and referred to, and all renewals or replacements thereof or articles in substitution therefor, whether or not the same are, or shall be attached to said building or buildings in any manner; and all of the foregoing, together with the Property, is herein referred to as the "Security"; To have and to hold the Security together with acquittances to the Trustee, its successors and assigns forever; TO SECURE to the Beneficiary (a) the repayment of the sums evidenced by a. Promissory Note to the Beneficiary executed by Trustor of even date herewith in the principal amount of Five Hundred Thousand Dollars ($500,000.00) (the "CDBG Promissory Note"); (b) the performance of the covenants and agreements of Borrower contained in a certain Agreement as hereinafter defined; and (c) the payment of all other sums, with interest thereon, advanced in accordance herewith to protect the security of this Deed of Trust; and the performance of the covenants and agreements of Trustor contained herein. TRUSTOR AND THE BENEFICIARY COVENANT AND AGREE AS FOLLOWS: 1. The Agreement. This Deed of Trust is executed and delivered, along with the CDBG Promissory Note and the Loan Agreement, to benefit the Property. A copy of said Loan Agreement is on file as a public record with the Beneficiary and is incorporated herein by reference (the "Agreement"). Trustor acknowledges that but for the execution of this ,Deed of Trust, the Beneficiary would not enter into the Agreement or CDBG Promissory Note secured by this Deed of Trust. 2. Trustor's Estate. Trustor is lawfully seized of the estate hereby conveyed and has the right to grant and convey the Security; that other than this Deed of Trust, the Security is not encumbered except for obligations secured by deeds of trust, or any other security agreement, to secure financing or refinancing for the purchase and rehabilitation of the Property. 3. Repayment of the Loan. Trustor will promptly repay, when due, the principal loan amount, as required by the City Promissory Note secured by this Deed of Trust. 4. Subordination. This obligation secured by this Deed of Trust shall be subordinated to the Senior Loan and AHSC Loan, but the City's Affordability Restrictions on Transfer of Property shall remain in first place with respect to the Senior Loan and subordinate with respect to the AHSC Loan. 5. Prior Mortgages and Deeds of Trust; Charges; Liens. Trustor shall perform all of Trustor's obligations under any mortgage, deed of trust or other security agreement with a lien which has priority over this Instrument, including Trustor's covenants to make payments when due (subject to an applicable notice and cure provisions). Trustor will pay all taxes, assessments and other charges, fines and impositions attributable to the Security which may attain a priority over this Deed of Trust, by Trustor making any payment, when due, directly to the payee thereof. Trustor will promptly furnish to the Beneficiary all notices of amounts due under this paragraph, and in the 2 event Trustor makes payment directly, Trustor will promptly discharge any lien which has priority over this Deed of Trust; provided that Trustor will not be required to discharge the lien of the Deed of Trust securing any senior lender or any other lien described in this paragraph so long as Trustor will agree in writing to the payment of the obligation secured by such lien in a manner acceptable to the Beneficiary, or will, in good faith, contest such lien by, or defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement of the lien or forfeiture of the Security or any part thereof. 6. Hazard Insurance. Trustor will keep the Security insured by such insurance policies in such amounts and for such periods as called for in the Agreement. All insurance policies and renewals thereof will include a standard mortgagee clause with standard lender's endorsement in favor of the holder of any senior lender and the Beneficiary as their interests may appear and in a form acceptable to the Beneficiary. The Beneficiary shall have the right to hold, or cause its designated agent to hold, the policies and renewals thereof, and Trustor shall promptly furnish to the Beneficiary, or its designated agent, the original insurance policies or certificates of insurance, all renewal notices and all receipts of paid premiums subject to the rights of any senior lender. In the event of loss, Trustor will give prompt notice to the insurance carrier and the Beneficiary or its designated agent. The Beneficiary, or its designated agent, may make proof of loss if not made promptly by Trustor. The Beneficiary shall receive 30 days advance notice of cancellation of any insurance policies required under this Section. Unless the Beneficiary and Trustor otherwise agree in writing, insurance proceeds, subject to the rights of any senior lender, will be applied to restoration or repair of the Security damaged, provided such restoration or repair is economically feasible and the security of this Deed of Trust is not thereby impaired. If such restoration or repair is not economically feasible or if the security of this Deed of Trust would be impaired, again, subject to the rights of any senior lender, the insurance proceeds will be used to repay the loan secured by this Deed of Trust, with the excess, if any, paid to Trustor. If the Security is abandoned by Trustor, or if Trustor fails to respond to the Beneficiary, or its designated agent within 30 days from the date notice is mailed by either of them to Trustor that the insurance carrier offers to settle a claim for insurance benefits, the Beneficiary, or its designated agent, is authorized to collect and apply the insurance proceeds at the Beneficiary's option either to restoration or repair of the Security or to repay the loan. If the Security is acquired by the Beneficiary, all right, title and interest of Trustor in and to any insurance policy and in and to the proceeds thereof resulting from damage to the Security prior to the sale or acquisition will pass to the Beneficiary to the extent of the sums secured by this Deed of Trust immediately prior to such sale or acquisition subject to the rights of any senior lender. 7. Preservation and Maintenance of Security. Trustor will keep the Security in good repair and will not commit waste or permit impairment or deterioration of the Security. 8. Protection of the Beneficiary's Security. If Trustor fails to perform the covenants and agreements contained in this Deed of Trust or if any action or proceeding is commenced which materially affects the Beneficiary's interest in the Security, including, but not limited to, default under the Deed of Trust securing any senior lender, eminent domain, insolvency, code enforcement, or arrangements or proceedings involving a bankrupt or decedent, then the Beneficiary, at the Beneficiary's option, upon notice to Trustor, may make such appearances, disburse such sums and take such action as it determines necessary to protect the Beneficiary's interest, including, but not limited to, disbursement of reasonable attorneys' fees and entry upon the Security to make repairs. Any amounts disbursed by the Beneficiary pursuant to this paragraph, with interest thereon, will become an indebtedness of Trustor secured by this Deed of Trust. Unless Trustor and the Beneficiary agree to other terms of payment, such amount will be payable upon notice from the Beneficiary to Trustor requesting payment thereof, and will bear interest from the date of disbursement at the rate payable from time to time on outstanding principal under the CDBG Promissory Note unless payment of interest at such rate would be contrary to applicable law, in which event such amounts will bear interest at the highest rate permissible under applicable law. Nothing contained in this paragraph will require the Beneficiary to insure any expense or take any action hereunder. 9. Inspection. The Beneficiary may make, or cause to be made, reasonable entries upon and inspections of the Security during normal business hours; provided that the Beneficiary will give Trustor reasonable notice of inspection. 10. Forbearance by the Beneficiary Not a Waiver. Any forbearance by the Beneficiary in exercising any right or remedy will not be a waiver of the exercise of any such right or remedy. The procurement of insurance or the payment of taxes or other liens or charges by the Beneficiary will not be a waiver of the Beneficiary's right to accelerate the maturity of the indebtedness secured by this Deed of Trust. 11. Remedies Cumulative. All remedies provided in this Deed of Trust are distinct and cumulative to any other right or remedy under this Deed of Trust or any other document, or afforded by law or equity, and may be exercised concurrently, independently or successively. 12. Successors and Assimns Bound. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the Beneficiary and Trustor subject to the provisions of this Deed of Trust. 13. Joint and Several Liability. All covenants and agreements of Trustor shall be joint and several. 14. Notice. Except for any notice required under applicable law to be given in another manner, (a) any notice to Trustor provided for in this City Deed of Trust will be given by certified mail, return receipt requested, addressed to Trustor at 1640 Sepulveda Blvd, Suite 425, Los Angeles, California, 90025 with a copy to Bank of America CDC Special Holding Company, Inc. Community Development Banking,MAl -225-02-02, 225 Franklin Street, Boston, MA 02110 and WCH Affordable XVIII, LLC Attn: Graham Espley-Jones, 151 Ikalmus Drive, #J5, Costa Mesa, CA 92626, (b) any notice to the Beneficiary will be given by certified mail, return receipt requested, to the Beneficiary at 20 Civic Center Plaza, P.O. Box 1988, Santa Ana, California 92702, Attention: Housing Manager, or at such other address as the Beneficiary may designate by notice to Trustor as provided above, and (c) to Trustee at 8121 E. Florence Avenue, Downey, California 90240. Notice shall be effective as of the date received as shown on the return receipt. 15. Governing Law. This Deed of Trust shall be governed by the laws of the State of California with venue in Orange County. 16. Severability. In the event that any provision or clause of this Deed of Trust or the City Loan Note conflicts with applicable law, such conflict will not affect other provisions of this Deed of Trust or the CDBG Promissory Note which can be given effect without the conflicting provision, and to this end the provisions of the Deed of Trust and the City Loan Note are declared to be severable. 17. Captions. The captions and headings in this Deed of Trust are for convenience only and are not to be used to interpret or define the provisions hereof. 18. Default in Foreclosure: Remedies. Upon Trustor's breach of any covenant or agreement of Trustor in this Deed of Trust or the CDBG Promissory Note secured by this Deed of Trust, including, but not limited to, the covenants to pay, when due, any sums secured by this Deed of Trust, the Beneficiary may declare all sums secured by this Deed of Trust immediately due and payable by delivering to Trustor notice thereof specifying: (1) The breach; (2) the action required to cure such breach; (3) a date not less than 30 days from the date the notice is received by Trustor as shown on the return receipt, by which such breach is to be cured provided, however, that if such default is not reasonable susceptible to being cured within 30 days, Trustor shall have a reasonable period to cure the defect so long as Trustor is diligently prosecuting the cure to completion; and (4) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Deed of Trust and sale of the Security. The notice will also inform Trustor of Trustor's right to reinstate after acceleration and the right to bring a court action to assert the non-existence of default or any other defense of Trustor to acceleration and sale. Notwithstanding anything to the contrary contained herein, a "default" shall not include (i) a transfer of a general partner's interest in Trustor when made in connection with the exercise by the Trustor's limited partner (the "Limited Partner") of its rights upon a default by a general partner under the Trustor's Amended and Restated Limited Partnership Agreement (the "Partnership Agreement") or upon a general partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting general partner is made within thirty (30) days of such default or, if such removal and substitution cannot reasonably be completed within thirty (30) days, so long as the Limited Partner commences to take action to remove and substitute the general partner with a reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the Property to the managing general partner of Trustor pursuant to the right of first refusal or to the general partners of Trustor pursuant to the purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest under and in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of a limited partner interest or an interest in a limited partner of the Trustor, (v) any sale, transfer or other disposition of an interest in a limited partner of the Borrower. If the breach is not cured on or before the date specified in the notice or such longer period as provided above or in the CDBG Promissory Note or the Agreement, the Beneficiary, at the Beneficiary's option, may: (a) declare all of the sums secured by this Deed of Trust to be immediately due and payable without further demand and may invoke the power of sale and any other remedies permitted by California law; (b) either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its security, enter upon the Security and take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of the Trustee, and do any acts which it deems necessary or desirable to preserve the value or marketability of the Property, or part thereof or interest therein, increase the income therefrom or protect the security thereof. The entering upon and taking possession of the Security shall not cure or waive any breach hereunder or invalidate any act done in response to such breach and, notwithstanding the continuance in possession of the Security, the Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust, or by law upon occurrence of any uncured breach, including the right to exercise the power of sale; (c) commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof; (d) deliver to the Trustee a written declaration of default and demand for sale, pursuant to the provisions for notice of sale found at California Civil Code Sections 2924, et seq., as amended from time to time; or (e) exercise all other rights and remedies provided herein, in the instruments by which Trustor acquires title to any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or provided by law. In addition, if an Event of Default occurs hereunder or under the Note, prior to taking any remedy under this Deed of Trust or any other document evidencing or securing this Note, Beneficiary shall first give notice of the occurrence of such Event of Default to the Limited Partner and the Limited Partner shall have not less than 30 days to cure such Event of Default, provided if in order to cure such Event of Default the Limited Partner gives notice to the Beneficiary that Limited Partner must remove and replace the general partner or general partners of Trustor, Limited Partner shall have until 30 days following the effective date of such removal and replacement to cure such Event of Default. The Beneficiary shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph, including, but not limited to, reasonable attorneys' fees. 19. Trustor's Right to Reinstate. Notwithstanding the Beneficiary's acceleration of the sums secured by this Deed of Trust, Trustor will have the right to have any proceedings begun by the Beneficiary to enforce this Deed of Trust discontinued at any time prior to S days before sale of the Security pursuant to the power of sale contained in this Deed of Trust or at any tune prior to entry of ajudgment enforcing this Deed of Trust if: (a) Trustor pays the Beneficiary all sums which would be then due under this Deed of Trust and no acceleration under the CDBG Promissory Note has occurred; (b) Trustor cures all breaches of any other covenants or agreements of Trustor contained in this Deed of Trust; (c) Trustor pays all reasonable expenses incurred by the Beneficiary and the Trustee in enforcing the covenants and agreements of Trustor contained in this Deed of Trust and in enforcing the Beneficiary's and the Trustee's remedies, including, but not limited to, reasonable attorneys' fees; and (d) Trustor takes such action as the Beneficiary may reasonably require to assure that the lien of this Deed of Trust, the Beneficiary's interest in the Security and Trustor's obligation to pay the sums secured by this Deed of Trust shall continue unimpaired. Upon such payment and cure by Trustor, this 'Deed of Trust and the obligations secured hereby will remain in Hill force and effect as if no acceleration had occurred. 20. Acceptance by Trustee. Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made apublic record as provided by law. Trustee is not obligated to notify any party to this Deed of Trust of pending sale under any other deed of trust or any action or proceeding in which Trustor, Beneficiary, or Trustee shall be a party unless brought by Trustee. 21. Reconveyance. Upon payment of all sums secured by this Deed of Trust, the Beneficiary will request the Trustee to reconvey the Security and will surrender this Deed of Trust and the CDBG Promissory Note to the Trustee. The Trustee will reconvey the Security without warranty and without charge to the person or persons legally entitled thereto. Such person or persons will pay all costs of recordation, if any. 22. Substitute Trustee. The Beneficiary, at the Beneficiary's option, may from time to time remove the Trustee and appoint a successor trustee to any Trustee appointed hereunder. The successor trustee will succeed to all the title, power and duties conferred upon the Trustee herein and by applicable law. 23. Request for Notice. Trustor requests that copies of the notice of default and notice of sale be sent to Trustee at the address set forth in Section 14 above. 24. Nonrecourse Liability. Neither Trustor nor any partner of Trustor shall have any personal liability under the Agreement, CDBG Promissory Note, and this Deed of Trust and any judgment, decree or order for payment of money obtained in any action to enforce the obligation of Trustor to repay the loan evidenced by such documents shall be enforceable against Trustor only to the extent of Trustor's interest in the Property. (Signatures on Following Page) IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first written above. SANTA ANA ARTS COLLECTIVE, LP, a California limited partnership R Santa Ana Arts Collective, LLC, a California limited liability company, its general partner By: ` 0 Kasey Burke, Vice NresiTent By: WCH AMM a California 1 its managing By: XVIII, LLC, ;d liability company, 1�l partner Graham P RMOMTO President 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 Los Angeles On July 13, 2017 before me, personally appeared Kasey Burke Rutzel M. Castillo, Notary Public (insert name and title of the officer) 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. IQ RUTZEL M. CASTILLO WITNESS my hand and official seal. Commission # 2100099 Notary Public - California Los Angeles County Omm, Ex Cres Mar 19, 2019 Signature(Seal) IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first written above. SANTA ANA ARTS COLLECTIVE, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, a California limited liability company, its general partner SIGNED IN OWNTERPART Kasey Burke, Vice President By: WCH Affordable XVIII, LLC, a California limited liability company, its managing general partner By: C14 WZa andra Gibbons, Executi e Vice President / CFO CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 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 1 County of Orange J} On July 13, 2017 before me, Leanne Truofreh, Notary Public Date Here Insert Name and Title of the Officer personally appeared Sandra Gibbons Nome(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(whose name() is/are subscribed to the within instrument and acknowledged to me that orishe/they execu ed the same in i+is/her/tiaefr authorized capacity(ies), and that by irls/her/tKeetrr signature(() on the instrument the persons), or the entity upon behalf of which the person) acted, executed the Instrument. LEANNE^TRUOFREII "'"°• kms_e. Commission k 2064657^ �-°®< ,�. z e Notar y Public - California n Orange County My Comm. Expires May 12, 2010 Place Notary Seal and/or Stamp Above 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 6oa_ Signatur Notar ublic Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: 1st Amended & Restated CDBG DOT Document Date: July 5, 2017 Number of Pages: Signer(s) Other Than Named Above: Capacity(os) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian of Conservator ❑ Other: Signer is Representing: k 02017 National Notary Association Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General Individual Trustee Other: Signer is Representing: ❑ Attorney In Fact ❑ Guardian of Conservator Exhibit "A" Legal Description Real property in the City of Santa Ana, County of Orange, State of California, described as follows: PARCEL A: THAT PORTION OF SECTION 12, TOWNSHIP 5 SOUTH, RANGE 10 WEST, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, BEING A PORTION OF THE LAND ALLOCATED TO JACOB ROSS IN DECREE OF PARTITION OF THAT RANCHO SANTIAGO DE SANTA ANA, RECORDED IN BOOK "B" OF JUDGEMENTS OF 17TH JUDICIAL DISTRICT COURT OF CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID SECTION 12, BEING ALSO THE INTERSECTION OF THE CENTER LINES OF SEVENTEENTH STREET AND MAIN STREET AS SAID INTERSECTION IS SHOWN ON A MAP FILED IN BOOK 11 PAGE 18 OF RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY, CALIFORNIA; THENCE ALONG THE NORTHERLY LINE OF SAID NORTHEAST QUARTER, NORTH 89° 56'40" WEST 289.89 FEET; THENCE SOUTH 00 16' 25" WEST 230.00 FEET; THENCE PARALLEL WITH THE NORTHERLY LINE OF SAID NORTHEAST QUARTER, SOUTH 89° 56' 40" EAST 289.78 FEET TO THE EASTERLY LINE OF SAID NORTHEAST QUARTER; THENCE ALONG SAID EASTERLY LINE NORTH 00 16'40" EAST 230.00 FEEL- TO THE POINT OF BEGINNING. EXCEPT THE NORTHERLY 40.00 FEEL' THEREOF. ALSO EXCEPT THE EASTERLY 35.00 FEET THEREOF. APN: 005-153-19 and 005-153-20 RECORDING REQUESTED BY FIRSTAMERICAN TITLE INSURANCE CO. NATIONAL COMMERCIAL SERVICES FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana Clerk of the Council 20 Civic Center Plaza P.O. Box 1988 (M-30) Santa Ana, California 92702 Attn: Clerk of the Council NCf,- A -,�Lor7-17 3 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII NO FEE * $ R 0 0 0 9 4 4 2 6 0 6 $ 2017000308364 3:25 pm 07126117 7 405 Dl I A36 12 0.00 0.00 0.00 0.00 33.00 0.00 0.00 0.00 31+,i` �3 4 HOME DEED OF TRUST AND ASSIGNMENT OF RENTS THIS HOME DEED OF TRUST AND ASSIGNMENT OF RENTS (the "Deed of Trust") made this 5' day of July, 2017, by and between Santa Ana Arts Collective, LP, a California limited partnership (the "Trustor"), AmeriNat, a Minnesota corporation (the "Trustee"), and the City of Santa Ana, a charter city and municipal corporation (the "Beneficiary"). Trustor, in consideration of the promises herein recited and the trust herein created, irrevocably grants, transfers, conveys and assigns to Trustee, in trust, with power of sale, the property located in the City of Santa Ana, County of Orange, State of California, described in the attached Exhibit A and more commonly known as 1666 N. Main Street, Santa Ana, California (the "Property"); TOGETHER with all the improvements now or hereafter erected on the Property, and all easements, rights, appurtenances and all fixtures now or hereafter attached to the Property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the Property covered by this HOME Deed of Trust; provided that so long as Truster is not in default hereunder, it shall be permitted to control the Property in accordance with the requirements of that certain HOME Loan Agreement entered into between the Trustor and the Beneficiary, dated concurrently herewith (the "Agreement"), which Agreement is on file with the Beneficiary as a public record; TOGETHER with the right, power and authority during the continuance of these Trusts, to collect the rents, issues, and profits of the Property, reserving unto the Trustor the right, prior to any default by Trustor in payment of the indebtedness secured by this Deed of Trust or in the performance of any agreement under this Deed of Trust, to collect and retain these rents, issues and profits as they become due and payable; and, TOGETHER with all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected, or hereafter to be erected, on the Property which are necessary to the complete and comfortable use and occupancy of such building or buildings for the purposes for which they were or are to be erected, including all other goods and chattels and personal property as are ever used or furnished in operating a building, or the activities THIS DOCUMENTWAS SIGNED IN COUNTERPART AND ISTO BE CONSIDERED AS ONE RECORDABLE DOCUMENT. RECORDING REQUESTED BY FIRST AMERICAN TITLE INSURANCE CO. NATIONAL, COMMERCIAL SERVICES FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana Clerk of the Council 20 Civic Center Plaza P.O. Box 1988 (M-30) Santa Ana, California 92702 Atm: Clerk of the Council NCS-1`l3431'sh'l HOME DEED OF TRUST AND ASSIGNMENT OF RENTS THIS HOME DEED OF TRUST AND ASSIGNMENT OF RENTS (the "Deed of Trust") made this 5U' day of July, 2017, by and between Santa Ana Arts Collective, LP, a California limited partnership (the "Trustor"), AmeriNat, a Minnesota corporation (the "Trustee"), and the City of Santa Ana, a charter city and municipal corporation (the 'Beneficiary"). Trustor, in consideration of the promises herein recited and the trust herein created, irrevocably grants, transfers, conveys and assigns to Trustee, in trust, with power of sale, the property located in the City of Santa Ana, County of Orange, State of California, described in the attached Exhibit A and more commonly larnown as 1666 N. Main Street, Santa Ana, California (the "Property"); TOGETHER with all the improvements now or hereafter erected on the Property, and all easements, rights, appurtenances and all fixtures now or hereafter attached to the Property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the Properly covered by this HOME Deed of Trust; provided that so long as Trustor is not in default hereunder, it shall be permitted to control the Property in accordance with the requirements of that certain HOME Loan Agreement entered into between the Trustor and the Beneficiary, dated concurrently herewith (the "Agreement"), which Agreement is on file with the Beneficiary as a public record; TOGETHER with the right, power and authority during the continuance of these Trusts, to collect the rents, issues, and profits of the Property, reserving unto the Tiustor the right, prior to any default by Trustor in payment of the indebtedness secured by this Deed of Trust or in the performance of any agreement under this Deed of Trust, to collect and retain these rents, issues and profits as they become due and payable; and, TOGETHER with all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected, or hereafter to be erected, on the Property which are necessary to the complete and comfortable use and occupancy of such building or buildings for the purposes for which they were or are to be erected, including all other goods and. chattels and personal property as are ever used or furnished in operating a building, or the activities THIS DOCUMENTWAS SIGNED IN COUNTERPART AND IS TO BE CONSIDERED AS ONE RECORDABLE DOCUMENT. conducted therein, similar to the one herein described and referred to, and all renewals or replacements thereof or articles in substitution therefor, whether or not the same are, or shall be attached to said building or buildings in any manner; and all of the foregoing, together with the Property, is herein referred to as the "Security"; To have and to hold the Security together with acquittances to the Trustee, its successors and assigns forever; TO SECURE to the Beneficiary (a) the repayment of the sums evidenced by a Promissory Note to the Beneficiary executed by Trustor of even date herewith in the principal amount of TWO MILLION, TWO HUNDRED AND NINETEEN THOUSAND, SEVEN HUNDRED AND SIXTY DOLLARS ($2,219,760.00) (the "HOME Promissory Note"); (b) the performance of the covenants and agreements of Borrower contained in a certain Agreement as hereinafter defined; and (c) the payment of all other sums, with interest thereon, advanced in accordance herewith to protect the security of this Deed of Trust; and the performance of the covenants and agreements of Trustor contained herein. TRUSTOR AND THE BENEFICIARY COVENANT AND AGREE AS FOLLOWS: 1. The Agreement. This Deed of Trust is executed and delivered, along with the HOME Promissory Note and the Agreement, to benefit the Property. A copy of the Agreement is on file as a public record with the Beneficiary and is incorporated herein by reference. Trustor acknowledges that but for the execution of this Deed of Trust, the Beneficiary would not enter into the Agreement or HOME Promissory Note secured by this Deed of Trust. 2. Trustor's Estate. Trustor is lawfully seized of the estate hereby conveyed and has the right to grant and convey the Security; that other than this Deed of Trust, the Security is not encumbered except for obligations secured by deeds of trust, or any other security agreement, to secure financing or refinancing for the purchase and rehabilitation of the Property. 3. Renayinent of the Loan. Trustor will promptly repay, when due, the principal loan amount, as required by the HOME Promissory Note secured by this Deed of Trust. 4. Subordination. This obligation secured by this Deed of Trust shall be subordinated to the Senior Loan and AHSC Loan, but the City's Affordability Restrictions on Transfer of Property shall remain in first place with respect to the Senior Loan and subordinate with respect to the AHSC Loan. 5. Prior Mortgages and Deeds of Trust; Charges; Liens. Trustor shall perform all of Truster's obligations under any mortgage, deed of trust or other security agreement with a lien which has priority over this Instrument, including Trustor's covenants to make payments when due (subject to an applicable notice and cure provisions). Trustor will pay all taxes, assessments and other charges, fines and impositions attributable to the Security which may attain a priority over this Deed of Trust, by Trustor making any payment, when due, directly to the payee thereof. Trustor will promptly furnish to the Beneficiary all notices of amounts due under this paragraph, and in the event Trustor makes payment directly, Trustor will promptly discharge any lien which has priority over this Deed of Trust; provided that Trustor will not be required to discharge the lien of the Deed of Trust securing any senior lender or any other lien described in this paragraph so long as Trustor 2 will agree in writing to the payment of the obligation secured by such lien in a manner acceptable to the Beneficiary, or will, in good faith, contest such lien by, or defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement of the lien or forfeiture of the Security or any part thereof. 6. Hazard Insurance. Trustor will keep the Security insured by such insurance policies in such amounts and for such periods as called for in the Agreement. All insurance policies and renewals thereof will include a standard mortgagee clause with standard lender's endorsement in favor of the holder of any senior lender and the Beneficiary as their interests may appear and in a form acceptable to the Beneficiary. The Beneficiary shall have the right to hold, or cause its designated agent to hold, the policies and renewals thereof, and Trustor shall promptly furnish to the Beneficiary, or its designated agent, the original insurance policies or certificates of insurance, all renewal notices and all receipts of paid premiums subject to the rights of any senior lender. In the event of loss, Trustor will give prompt notice to the insurance carrier and the Beneficiary or its designated agent. The Beneficiary, or its designated agent, may make proof of loss if not made promptly by Trustor. The Beneficiary shall receive 30 days advance notice of cancellation of any insurance policies required under this Section. Unless the Beneficiary and Trustor otherwise agree in writing, insurance proceeds, subject to the rights of any senior lender, will be applied to restoration or repair of the Security damaged, provided such restoration or repair is economically feasible and the security of this Deed of Trust is not thereby impaired. If such restoration or repair is not economically feasible or if the security of this Deed of Trust would be impaired, again, subject to the rights of any senior lender, the insurance proceeds will be used to repay the loan secured by this Deed of Trust, with the excess, if any, paid to Trustor. If the Security is abandoned by Trustor, or if Trustor fails to respond to the Beneficiary, or its designated agent within 30 days from the date notice is mailed by either of them to Trustor that the insurance carrier offers to settle a claim for insurance benefits, the Beneficiary, or its designated agent, is authorized to collect and apply the insurance proceeds at the Beneficiary's option either to restoration or repair of the Security or to repay the loan. If the Security is acquired by the Beneficiary, all right, title and interest of Trustor in and to any insurance policy and in and to the proceeds thereof resulting from damage to the Security prior to the sale or acquisition will pass to the Beneficiary to the extent of the sums secured by this Deed of Trust immediately prior to such sale or acquisition subject to the rights of any senior lender. 7. Preservation and Maintenance of Securi . Trustor will keep the Security in good repair and will not commit waste or permit impairment or deterioration of the Security. 8. Protection of the Beneficiary's Security. If Trustor fails to perform the covenants and agreements contained in this Deed of Trust or if any action or proceeding is commenced which materially affects the Beneficiary's interest in the Security, including, but not limited to, default under the Deed of Trust securing any senior lender, eminent domain, insolvency, code enforcement, or arrangements or proceedings involving a bankrupt or decedent, then the Beneficiary, at the Beneficiary's option, upon notice to Trustor, may make such appearances, disburse such sums and take such action as it determines necessary to protect the Beneficiary's interest, including, but not limited to, disbursement of reasonable attorneys' fees and entry upon the Security to make repairs. Any amounts disbursed by the Beneficiary pursuant to this paragraph, with interest thereon, will become an indebtedness of Trustor secured by this Deed of Trust. Unless Trustor and the Beneficiary agree to other terms of payment, such amount will be payable upon notice from the Beneficiary to Trustor requesting payment thereof, and will bear interest from the date of disbursement at the rate payable from time to time on outstanding principal under the HOME Promissory Note unless payment of interest at such rate would be contrary to applicable law, in which event such amounts will bear interest at the highest rate permissible under applicable law. Nothing contained in this paragraph will require the Beneficiary to insure any expense or take any action hereunder. 9. Inspection. The Beneficiary may make, or cause to be made, reasonable entries upon and inspections of the Security during normal business hours; provided that the Beneficiary will give Trustor reasonable notice of inspection. 10. Forbearance by the Beneficiary Not a Waiver. Any forbearance by the Beneficiary in exercising any right or remedy will not be a waiver of the exercise of any such right or remedy. The procurement of insurance or the payment of taxes or other liens or charges by the Beneficiary will not be a waiver of the Beneficiary's right to accelerate the maturity of the indebtedness secured by this Deed of Trust. 11. Remedies Cumulative. All remedies provided in this Deed of Trust are distinct and cumulative to any other right or remedy under this Deed of Trust or any other document, or afforded by law or equity, and may be exercised concurrently, independently or successively. 12. Successors and Assigns Bound. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the Beneficiary and Trustor subject to the provisions of this Deed of Trust. 13. Joint and Several Liability. All covenants and agreements of Trustor shall be joint and several. 14. Notice. Except for any notice required under applicable law to be given in another manner, (a) any notice to Trustor provided for in this HOME Deed of Trust will be given by certified mail, return receipt requested, addressed to Trustor at 1640 Sepulveda Blvd, Suite 425, Los Angeles, California, 90025 with a copy to Bank of America CDC Special Holding Company, Inc. Community Development Banking, MAI -225-02-02, 225 Franklin Street, Boston, MA 02110 and WCH Affordable XVIII, LLC Attn: Graham Espley-Jones, 151 Kalmus Drive, 05, Costa Mesa, CA 92626, (b) any notice to the Beneficiary will be given by certified mail, return receipt requested, to the Beneficiary at 20 Civic Center Plaza, P.O. Box 1988, Santa Ana, California 92702, Attention: Housing Manager, or at such other address as the Beneficiary may designate by notice to Trustor as provided above, and (c) to Trustee at 8121 E. Florence Avenue, Downey, California 90240. Notice shall be effective as of the date received as shown on the return receipt. 15. Governing Law. This Deed of Trust shall be governed by the laws of the State of California with venue in Orange County. 16. Severability. In the event that any provision or clause of this Deed of Trust or the HOME Loan Note conflicts with applicable law, such conflict will not affect other provisions of this Deed of Trust or the HOME Promissory Note which can be given effect without the conflicting provision, and to this end the provisions of the Deed of Trust and the HOME Loan Note are declared to be severable. 17. Captions. The captions and headings in this Deed of Trust are for convenience only and are not to be used to interpret or define the provisions hereof. 18. Default in Foreclosure; Remedies. Upon Trustor's breach of any covenant or agreement of Trustor in this Deed of Trust or the HOME Promissory Note secured by this Deed of Trust, including, but not limited to, the covenants to pay, when due, any sums secured by this Deed of Trust, the Beneficiary may declare all sums secured by this Deed of Trust immediately due and payable by delivering to Trustor notice thereof specifying: (1) The breach; (2) the action required to cure such breach; (3) a date not less than 30 days from the date the notice is received by Trustor as shown on the return receipt, by which such breach is to be cured provided, however, that if such default is not reasonable susceptible to being cured within 30 days, Trustor shall have a reasonable period to cure the defect so long as Trustor is diligently prosecuting the cure to completion; and (4) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Deed of Trust and sale of the Security. The notice will also inform Trustor of Trustor's right to reinstate after acceleration and the right to bring a court action to assert the non-existence of default or any other defense of Trustor to acceleration and sale. Notwithstanding anything to the contrary contained herein, a "default" shall not include (i) a transfer of a general partner's interest in Trustor when made in connection with the exercise by the Trustor's limited partner (the "Limited Partner") of its rights upon a default by a general partner under the Trustor's Amended and Restated Limited Partnership Agreement (the "Partnership Agreement") or upon a general partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting general partner is made within thirty (30) days of such default or, if such removal and substitution cannot reasonably be completed within thirty (30) days, so long as the Limited Partner commences to take action to remove and substitute the general partner with a reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the Property to the managing general partner of Trustor pursuant to the right of first refusal or to the general partners of Trustor pursuant to the purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest under and in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of a limited partner interest or an interest in a limited partner of the Trustor, (v) any sale, transfer or other disposition of an interest in a limited partner of the Borrower. If the breach is not cured on or before the date specified in the notice or such longer period as provided above or in the HOME Promissory Note or the Agreement, the Beneficiary, at the Beneficiary's option, may: (a) declare all of the sums secured by this Deed of Trust to be immediately due and payable without further demand and may invoke the power of sale and any other remedies permitted by California law; (b) either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its security, enter upon the Security and take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of the Trustee, and do any acts which it deems necessary or desirable to preserve the value or marketability of the Property, or part thereof or interest therein, increase the income therefrom or protect the security thereof. The entering upon and taking possession of the Security shall not cure or waive any breach hereunder or invalidate any act done in response to such breach and, notwithstanding the continuance in possession of the Security, the Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust, or by law upon occurrence of any uncured breach, including the right to exercise the power of sale; (c) commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof, (d) deliver to the Trustee a written declaration of default and demand for sale, pursuant to the provisions for notice of sale found at California Civil Code Sections 2924, et seq., as amended from time to time; or (e) exercise all other rights and remedies provided herein, in the instruments by which Trustor acquires title to any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or provided by law. In addition, if an Event of Default occurs hereunder or under the Note, prior to taking any remedy under this Deed of Trust or any other document evidencing or securing this Note, Beneficiary shall first give notice of the occurrence of such Event of Default to the Limited Partner and the Limited Partner shall have not less than 30 days to cure such Event of Default, provided if in order to cure such Event of Default the Limited Partner gives notice to the Beneficiary that Limited Partner must remove and replace the general partner or general partners of Trustor, Limited Partner shall have until 30 days following the effective date of such removal and replacement to cure such Event of Default,.. The Beneficiary shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph, including, but not limited to, reasonable attorneys' fees. 19. Trustor's Right to Reinstate. Notwithstanding the Beneficiary's acceleration of the sums secured by this Deed of Trust, Trustor will have the right to have any proceedings begun by the Beneficiary to enforce this Deed of Trust discontinued at any time prior to 5 days before sale of the Security pursuant to the power of sale contained in this Deed of Trust or at any time prior to entry of a judgment enforcing this Deed of Trust if: (a) Trustor pays the Beneficiary all sums which would be then due under this Deed of Trust and no acceleration under the HOME Promissory Note has occurred; (b) Trustor cures all breaches of any other covenants or agreements of Trustor contained in this Deed of Trust; (c) Trustor pays all reasonable expenses incurred by the Beneficiary and the Trustee in enforcing the covenants and agreements of Trustor contained in this Deed of Trust and in enforcing the Beneficiary's and the Trustee's remedies, including, but not limited to, reasonable attorneys' fees; and (d) Trustor takes such action as the Beneficiary may reasonably require to assure that the lien of this Deed of Trust, the Beneficiary's interest in the Security and Trustor's obligation to pay the sums secured by this Deed of Trust shall continue unimpaired. Upon such payment and cure by Trustor, this Deed of Trust and the obligations secured hereby will remain in full force and effect as if no acceleration had occurred. 20. Acceptance by Trustee. Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party to this Deed of Trust of pending sale under any other deed of trust or any action or proceeding in which Trustor, Beneficiary, or Trustee shall be a parry unless brought by Trustee. 21. Reconveyance. Upon payment of all sums secured by this Deed of Trust, the Beneficiary will request the Trustee to reconvey the Security and will surrender this Deed of Trust 6 and the HOME Promissory Note to the Trustee. The Trustee will reconvey the Security without warranty and without charge to the person or persons legally entitled thereto. Such person or persons will pay all costs of recordation, if any. 22. Substitute Trustee. The Beneficiary, at the Beneficiary's option, may from time to time remove the Trustee and appoint a successor trustee to any Trustee appointed hereunder. The successor trustee will succeed to all the title, power and duties conferred upon the Trustee herein and by applicable law. 23. Request for Notice. Trustor requests that copies of the notice of default and notice of sale be sent to Trustee at the address set forth in Section 14 above. 24. Nonrecourse Liability. Neither Trustor nor any partner of Trustor shall have any personal liability under the Agreement, HOME Promissory Note, and this Deed of Trust and any judgment, decree or order for payment of money obtained in any action to enforce the obligation of Trustor to repay the loan evidenced by such documents shall be enforceable against Trustor only to the extent of Trustor's interest in the Property. (Signatures on Following Page) IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first written above. SANTA ANA ARTS COLLECTIVE, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, a California limited liability company, its administrative general partner By: Kasey Burke, Vic e e t By: WCH ffordable XVIII, LLC, a Califo a limited liability company, its managm general partner SIGNED IN COUNTERPART Espley-Jones, President 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 Los Angeles On July 13, 2017 before me, Rutzel M. Castillo, Notary Public (insert name and title of the officer) personally appeared Kasey Burke 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. (Seal) RUTZEr.sIr *' " 6 '*A M. CASTILLO Commission 0 2100499 [ Notary Public - Cal9ornia Los Angeles County Worn EM ires maar I9, 2019 IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first written above. SANTA ANA ARTS COLLECTIVE, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, a California limited liability company, its administrative general partner 0 SIGNED IN COUNTERPART Kasey Burke, Vice President By: WCH Affordable XVIII, LLC, a California limited liability company, its managing general partner By: d'arkh ---) Sandra Gibbons, Execu ' e Vice President / CFO CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 ----------------- A notary public or other officer completing this certificate verifies onlythe 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 July 13, 2017 before me, Leanne Truofreh, Notary Public Date Here Insert Name and Title of the Officer personally appeared Sandra Gibbons Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(( whose namely) is/ace subscribed to the within instrument and acknowledged to me that+he/she/tJaey execu ed the same in Ws/herGthefr authorized capacity(ies), and that by 1;4s/her/t4eir signatures) on the instrument the personal, or the entity upon behalf of which the person(8) acted, executed the instrument. LEANNE TRUOFREH rte' Commission # 2064657 ;?,; a Notary Public - California i z�' Orange County My Comm. Expires May 12, 2018 Place Notary Seal and/or Stamp Above 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 Signature fotaryP bic Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: HOME DOT Document Date: July 5, 2017 Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian of Conservator ❑ Other: Signer is Representing: 02017 National Notary Association NumberofPages: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner— ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian of Conservator ❑ Other: Signer is Representing: Exhibit "A" Legal Description Real property in the City of Santa Ana, County of Orange, State of California, described as follows: PARCEL A: THAT PORTION OF SECTION 12, TOWNSHIP 5 SOUTH, RANGE 10 WEST, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, BEING A PORTION OF THE LAND ALLOCATED TO JACOB ROSS IN DECREE OF PARTITION OF THAT RANCHO SANTIAGO DE SANTA ANA, RECORDED IN BOOK "B" OF JUDGEMENTS OF 17TH JUDICIAL DISTRICT COURT OF CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID SECTION 12, BEING ALSO THE INTERSECTION OF THE CENTER LINES OF SEVENTEENTH STREET AND MAIN STREET AS SAID INTERSECTION IS SHOWN ON A MAP FILED IN BOOK 11 PAGE 18 OF RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY, CALIFORNIA; THENCE ALONG THE NORTHERLY LINE OF SAID NORTHEAST QUARTER, NORTH 89° 56'40" WEST 289.89 FEET; THENCE SOUTH 00 16' 25" WEST 230.00 FEET; THENCE PARALLEL WITH THE NORTHERLY LINE OF SAID NORTHEAST QUARTER, SOUTH 89° 56' 40" EAST 289.78 FEET TO THE EASTERLY LINE OF SAID NORTHEAST QUARTER; THENCE ALONG SAID EASTERLY LINE NORTH 00 16' 40" EAST 230.00 FEET TO THE POINT OF BEGINNING. EXCEPT THE NORTHERLY 40.00 FEET THEREOF. ALSO EXCEPT THE EASTERLY 35.00 FEET THEREOF, APN: 005-153-19 and 005-153-20