HomeMy WebLinkAboutAgreement A-23-176 Subordination Agreement.pdf Agreement No. 23-176
WHEN RECORDED.MAIL TO:
Citibank, N.A.
Transaction and Asset Management GrouplPust Closing
Citi Cornmuaxity Capital
3800 Citibank Center
Tampa, Florida 33610
Re: Crossroads"Village Deal ID No. 60001602
(Space Above This Line far Recorder's Urn)
SUBORDINATION AGREEMENT
(Regulatory Agreement)
NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR
RIGHTS UNDER CERTAIN AGREEMENTS RELATING TO CERTAIN REAL
PROPERTY BECOMINO SUBJECT TO, AND OF LOWER PRIORITY THAN,
THE LIEN OF A SECURITY INTEREST.
THIS SUBORDINATION AGREEMENT ("Agreement") is dated for reference purposes as of
December 1, 2022, by and among CITIBANK, N.A., a national banking association (together
with its successors or assigns, "Senior.Lienholder"), and the COUNTY OF F'RESNO, a public
subdivision of the State of California (tile"C aunty"or"Recipient").
WI`I"NESSETH
WHEREAS, Crossroads Village Fresno, LP, a California limited partnership
("Borrow_e_r"), is the fee owner of certain real property and all improvements thereon (the
located in the City of Fresno, Fresno County, California, as more particularly
described in�'NIIjbjt A attached hereto (collectively, the "P,ranerty")_
WI EREAS, the Department of housing and Community Development (the
"De rtment"), the Recipient, UP Holdings California, LLC, an Illinois limited liability
company ("UP Holdings"), and RH Community Builders LP, a California limited partners("RFI
Buuildcrs"), entered into that certain Standard Agreement, dated as of November 10, 2020, as
assigned to Borrower pursuant to that certain [Assignment and Assumption Agreement dated as
of , 2022) (collectively, the "Standard Agreement'), pursuant to which the Department
agreed to make a grant (the "Grant") to Recipient in an amount equal to $14,818,701, to be
disbursed in accordance:with the Standard Agreement.
WHEREAS, pursuant to the terms of the Standard Agreement, Blackstone Crossroads LP,
a California limited partnership, L)P Holdings and RH Builders and the County entered into that
certain Regulatory Agreement and Declaration of Restrictive; Covenants(Use, Income, and bent
Restrictions), dated as of November 18,2020, recorded in the Official Records of Fresno County,
California ("Official Records") on April 14, 2021 under Recorder's Serial Number
26137943-v2
2021-0061669, as assigned to Borrower pursuant to that certain (Assignment and Assumption
Agreement dated as of__, 2022J to be recorded concurrently herewith in the Official Records
(collectively, the "Regulatory Agreement"), which encumbers the Property. The Standard
Agreement, and the Regulatory Agreement are sometimes hereinafter collectively referred to as
the "Gra,t Doc tments",
WHEREAS, Borrower has applied to Senior Lienholder for a loan (the "Senior Loan")
for the construction, rehabilitation, development, equipping and/or operation of a 143-unit
multifamily residential project located at the Property to be known as Crossroads Village.
WHEREAS, the Senior Loan is evidenced by that certain Multifamily Construction Note,
dated as of December (_J, 2.022, in the maximum principal amount of$(40,000,000] made by
Borrower payable to the order of Senior Lienholder (as the same may from time to time be
extended, consolidated, substituted for, modified, increased, amended and supplemented, the
"Senior Note") and that certain Construction 'Loan Agreement, dated as of the date hereof, by
and between Borrower and Senior Lienholder(the "Senior Loan..Agrmy ent").
WHEREAS, the Senior Loan is secured by, among; other things, that certain Multifamily
Deed of Trust, Assignment of Rents, Security Agreement and Fixture piling (California), dated
as of the date hereof, executed by Borrower for the benefit of Senior Lienholder (as the same
may from time to time be extended, con5olidated, substituted for, modified, increased, amended
and supplemented, "Senior Deed of Trust"), which Senior Deed of Trust shall be recorded
concurrently herewith in the Official Records encumbers the Property.
WHEREAS, as used herein, the terra "Senior Loan Dogulentf means, collectively, the
Senior Loan Agreement, the Senior Note, the Senior Deer! of Trust and all other documents,
agreements and instruments evidencing and/or securing the Senior Loan,
WHEREAS, it is a requirement in the Senior Loan Documents and a condition precedent
to the Senior Lienholder malting the Senior Loan that the Senior Deed of Trust shall
unconditionally be and remain at all tithes a lien or charge upon the property and that the effect
of the Senior Deed of Trust shall be deemed to be prior and superior to the Regulatory
Agreement and the other Grant Documents.
WHEREAS, it is to the mutual benefit of the parties hereto that Senior Lienholder
provide the Senior Loan to the Borrower; and the County is willing that the Senior Deed of Trust
shall constitute a lien or charge upon the Property whose effect is unconditionally prior and
superior to the lien or charge of the Regulatory Agreement and the other Grant Documents.
NOW, THEREFORE, in consideration of the mutual benefits accruing to the parties
hereto and other valuable consideration, the receipt and sufficiency of which consideration is
hereby acknowledged, and in order to induce Senior Lienholder to approve the Regulatory
Agreement, the parties to this Agreement do hereby declare, understand and agree as follows;
1. That the liens, rights, remedies and charges granted pursuant to the Senior Deed
of Trust and the Senior Loan Documents, and any amendments, modifications, renewals or
extensions thereof, shall unconditionally be and remain at all times a lien, right, remedy or
Subordination Agreement
(Regulatory Agreement) 2 Crossroads Village
charge on the Property, effectively prior and superior to the lien, right, remedy or charge of the
Regulatory Agreement and the other Grant Documents on the Property. Notwithstanding the
foregoing, Senior Lienholder shall not make any amendments to the Senior loan Documents
which increase the loan amount, change the method used to calculate the interest rate, aMct the
repayment terms thereof, or eliminate any required interest reserve without the prior written
consent of the: County.
2. That, in the event of a foreclosure of the Senior Loan Documents, the County
shall have no right to enforce against the Senior 1; ienholder, or to require Senior Lienholder to
comply with the Regulatory Agreement by reason of the fact that the Regulatory Agreement is
an encumbrance upon the fee interest in the Property.
3. Notwithstanding anything to the contrary set forth in the Senior Loan Documents,
any and all disbursements made by Scnior Lienholder to or for the account or benefit of
Borrower or the Property in connection with any sums advanced by Senior Lienholder for the
payment of real estate taxes or assessments or insurance premiums, or any other sutras advanced
or obligations incurred by Senior Lienholder in connection with the protection or preservation of
any seCUrity given to Senior Lienholder with respect to the Loan (including costs to complete
construction and/or rehabilitation of the Improvements), shall be deemed to be, and in all events
shall be, secured by the Senior Deed of Trust and, as so secured, and regardless of whether
Borrower at the time of any such disbursements may have been in default under the Senior Loan
Agreement, the Senior Deed of Trust, or any of the other Senior Loan Documents and regardless
of whether Senior Lienholder was obligated to make any such disbursements, shall be and
remain a lien or charge against the Property that is unconditionally prior and superior to the
effect of the Regulatory Agreement and the other Grant Documents,
4. That Senior Lienholder would not have approved the Regulatory Agreement
without this Agreement.
S. That this Agreement shall be the whole and only agreement with regard to the
subordination of the lien, right, remedy or charge of the Regulatory Agreement and the other
Grant Documents to the lien, right, remedy or charge of the Senior Deed of Trust and the senior
Loan Documents and shall supersede and cancel, but only insofar as would affect the priority
between such documents, any prior agreement as to such subordination, which provide for the
subordination of the lien or charge of the Regulatory Agreement.
5. The County declares, agrees and acknowledges that:
(a) the County has been offered an opportunity to review the Senior loan
Documents, including (i) all provisions of the note and deed of trust in favor of Senior
Lienholder above referred to, and (ii) all agreements, including but not limited to any
loan or escrow agreements, between Borrower and Senior Lienholder for the
disbursement of the proceeds of Senior Lienholder's loan.
(b) Senior Lienholder in making disbursements pursuant to any such
agreement is under no obligation or duty to, nor has Senior Lienholder represented that it
will, see to the application of such proceeds by the, person or persons to whom Senior
Subordination Agreement
(Regulatory Agreement) 3 Crossroads Village
Lienholder disburses such proceeds and any application or use of such proceeds for
purposes other than those provided for in such agreement or agreements shall not defeat
the subordination herein made in whole or in part.
(c) The County acknowledges that the Regulatory Agreement encumbers the
Property and the Senior Loan Documents encumber or shall encumber the Property.
Notwithstanding the foregoing, the County hereby agrees that, in the event of Senior
Lienholder's foreclosure under any of the Senior Loan Documents, including exercise of
a power of sale, (i) the Regulatory Agreement shall be of no further force and effect and
shall in no way be binding on the Property, and (ii) the County intentionally and
unconditionally waives enforcement of the Regulatory Agreement against the Senior
Lienholder, its successors, assigns and all future owners of the Property, in every respect,
including any and all use and affordability restrictions contained therein, and shall have
no right to require compliance with the same by reason of the fact that the Regulatory
Agreement is an encumbrance upon the fee interest in the Property. The foregoing
agreement by the County contained in this Section 5(c) shall be in effect after a
foreclosure under the Senior Loan Documents and until such time as the Sublease is
terminated and neither Senior Lienholder nor its successors and/or assigns hold any
interest in the Property.
(d) The County understands that in reliance upon, and in consideration of, the
foregoing subordination and acknowledgement that the Regulatory Agreement will be of
no force and effect upon a foreclosure under the Senior Loan Documents, the Senior
Loan is being and will be made and, as part and parcel thereof, specific monetary and
other obligations are being and will be entered into which would not be made or entered
into but for said reliance upon this subordination.
7. Senior Lienholder hereby agrees, but only as a separate and independent covenant
of such Senior Lienholder and not as a condition to the continued effectiveness of the covenants
or agreement of the Borrower and the County as set forth herein, as follows:
(a) Following notice from such Senior Lienholder to the Borrower that a
default or breach exists under the terms of the applicable Senior Loan Doeumtents, such
Senior Lienholder shall promptly (but in no event later than three (3) business days
following the delivery of such notice to Borrower) send a copy of such notice to the
County and the County shall have the right, but not the obligation, to cure the default as
follows:
(i) if the default is reasonably capable of being cured within forty-five
(45) days from the date of delivery of notice to County, as detennined by the
applicable Senior Lienholder in its sole, but reasonable, discretion, the County
shall have such period to effect a cure prior to completion of a foreclosure by such
Senior Lienholder under the applicable Senior Loan Documents.
(i i) if the default is such that it is not reasonably capable of being
cured within forty-five (45)days from the date of delivery of notice to the County
as determined by the applicable Senior Lienholder in its sole, but reasonable,
Subordination Agreement
(Regulatory Agreement) 4 Crossroads Village
discretion, and if the County (a) initiates corrective action within said period, and
(b) diligently, continually, and in good faith works to effect a cure as soon as
possible, then the County shall have such additional time, not to exceed ninety
(90) days, as is determined by such Sensor Lienholder, in its sole discretion, to be
reasonably necessary to cure the default prior to completion of a foreclosure by
such Senior Lienholder under the applicable Senior Loan Documents,
(iii) In no event shall such Senior Lienholder be precluded from
completion of a foreclosure 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 ninety (90) days after the first notice of default is given, or such longer
period of time as may be specified in the applicable Senior Loan Documents_
(iv) Nothing in this subparagraph (a) is intended to modify any
covenant, term or condition contained in the Senior Loan Documents, including,
without limitation, the covenant against creating or recording any liens or
encumbrances against the Property without the prior written approval of Senior
Lienholder.
(b) The provisions of this paragraph 5 are intended to supplement, and not to
limit, waive, modify or replace, those provisions of law pertaining to notice and cure
rights of junior encurnbrancers including, without limitation, those set forth in California
Civil Code Sections 2924b and 2924c (if applicable).
(c) Senior Lienholder shall give the County notice at the address set forth
below or such other address as the County may instruct Senior L.iertholder in writing froth
time to time:
County of Fresno
205 W Pontiac Way,#2
Clovis, California 93612
Attn,: Director of Department;of Social Services
8, This Agreement shall be binding on and inure to the benefit of the legal
representatives, heirs, successors and assigns of the parties.
9. This Agreement shall be governed by and construed in accordance with the laws
of the State of California.
10. 1n the event that any party to this Agreement: brings an action to interpret or
enforce its rights under this Agreement, the prevailing party in such action shall be, entitled to
recover its costs and reasonable attorneys' fees as awarded by the court in such action.
11. This Agreement may be signed by different parties hereto in counterparts with the
same effect as if the signahires to each counterpart were upon a single instrument. All
counterparts shall be deemed an original of this agreement.
Subordination Agreement
(Regulatory Agreemont) 5 Crossroads Village
NOTICE: THIS SUBORDINATION AGREEMENT CONTAINS A. PROVISION WHICH
ALLOWS TIME PERSON OBLIGATED ON YOUR REAL PROPERTY SECURIw TO
OBTAIN A LOAN A PORTION OF WHICH MAY 13E EXPENDED FOR OTHER PURPOSES
THAN IMPROVEMENT OF THE PROPERTY.
[THE REMAINDER OF THIS PAGE. IS INTENTIONALLY LEFT BLANK]
Subordination Agreement
(Regulatory Agreement) 6 Crossroads Village
IT IS RECOMMFNDED THAT, PRIOR. TO THE EXECUTION OF THIS SUBORDINATION
AGREEMENT, TI1E PARTIES CONSULT WITH THEIR ATTORNEYS WITH RESPECT
FUNDING LENDER:
CITIBANK, N.A.
By.
Name: Michael Hemmens
Title: Vice President
Deal if) No. 60001602
Sijbordhiatioll Agreemew
(Regulatory Agreement) S-1 Crossroads Village
CALIFORNIA ALL-PURPOSE 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, Ot•
vttlidit ay f that oCu,tteitt-
STATE OF CAIJFORN[A
COUNTY OF l , -A-
On '-2p before me, � + / (here Insert name and title of the
officer), personally appeared � 1 5 _ who proved to n1e 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 sarne in his/her/their authorized capacity(ies), and
that by Iiis/her/their si,ga3atitre(s)on the instrument the person(s),or the entity Upon bclialf 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 r y hand and o Rc•
s�AN VEAL
",all 11"ji[•CaNftlmia #
l�s An{ete!Cri4ALY r
Signature _ _ _ x., .-� (Seal) caR+m{ss4onMxe,aon{
YY{oeh.EYWO J111 S,;OtS
Subordination Agreenicnt
(kegulatery Agreeineot) Crossroads Village
COUNTY:
COUNTY OF FRESNO,
a public subdivision of the State of California
By:
NamQ*.: Sa uin ro
Titleirman of the Board of Supervisors of the
County of Fresno
ATTEST:
BERNICE E.SEIDEL
Clerk of the Board of Supervisors
County of Fresno,State of California
By"fit, U;Lfti _Deputy
Subordination Agreement
(Regulatory Agreement) S-2 Crossroads Village
CALIFORNIA ALL-PURPOSE 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 Ff @Sno
On 04/11 /2023 before met, ��miStM mol!MyfeNere insert name and title of the
officer), personally appeared Salyafiar tVwmWb who proved to me on the basis of
satisfactory evidence to be the persons)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 signatures)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)
CYAN EDWSTEN
NotAry Pubdc-California
*my
Fresno County
Commission w 2389881
Comm.Expires Jan A,2026
Subordination Agreement
(Regulatory Agreement) Crossroads Village
CONSENT OF BORROWER
Borrolver acknowledges receipt of a copy of the foregoing Subordination Agreement, by and
among CITIBANK, N.A., and COUNTY OF FRESNO and consents to the agreement of the
parties set forth in this Agreement.
BORROWER:
CROSSROADS VILLAGE FRESNO,LK
a California limited partnership
By: HOM XXX1 LLC, a Delaware limited
liability company, its Managing General
Partner
By: Housing on Merit, a California
nonprofit public benefit corporation,
its Sole Member
BY 1 -
Name: ,t nifer Lit k
Title. -.x�cutive I ' ector
By: Crossroads Village Fresno LLC, a California
limited liability company,
its Administrative General Partner
By: UP Holdings, LLC, an Illinois
limited liability company, dba UP
Holdings California, LLC, its
Managing Member
By:
Name,- Jessica Hoff'Berzac
Title: President
By; RHCB Crossroads LLC, a California
limited liability company, its
Member
By: RH Community Builders LP
a California limited
partnership, its Sole Member
Sulvi-dinano n Agiveti etzt
(Rqulalon Agn xnwril) S-3 cnpisntnds Village
CALIFORNIA ALL^PURPOSE ACKNOWLEDGMENT
A notary- public or other officer completing this certificate verifies only the identity of the individual
who signed the document to i�hich this certificate is attached. and not the truthfulness, accuraq. or
validitv of that document_
STATE OF CALIFORNIA
COl.NTY OF Sa,j �1,e4 a
I -
On )31.°c..._� _ . .._. before me. G/�?���"` �. S�1, �e� (Here insert name and title ol'the
officer), personally appeared isho proved to me on the basis of
satisfactory evidence to be the personN) whose name(l,,Z is*c subscribed to the i0thin instrument
and acknowledged to me that hq/she/thq executed the same in hk/her/Dwir authorized capacity6cs).
and that by W/her/tht� signature%) on the instrument the person . or the entity upon behalf of
which the person(X)acted.executed the instrument.
l certifi' under PENALTY OF PERJURY under the laws of the State of Califomia that the foregoing
paragraph is true and correct.
WITNESS mrji:und all a'ici seal.
L/ ! t Seal WtLl1ANt B.SCNiND4t R
Signature .. . ,.,..,,
Not PUbhC Cahlprnia 6
San Diego Cpuni
z yy
M Comm.EKD�res feu ,30, 261
Subordination Agruement
(Rcgulakwv Agmanent) C.'rossi-clads Village
CONSENT OF BORROWER
Borrower acknowledges receipt of a copy of the foregoing Subordination Agreement, by and
among CITIBANK, N.A., and COUNTY OF FRESNO and consents to the agreement of the
parties set forth in this Agreement.
BORROWER:
CROSSROADS VH LAGE FRESNO, LP,
a California limited partnership
By: HOM XXXI LLC,a Delaware limited
liability company, its Managing General
Partner
By: Housing on Merit, a California
nonprofit public benefit corporation,
its Sole Member
By:
Name: Jennifer Litwak
Title: Executive Director
By: Crossroads Village Fresno LLC, a California
limited liability company,
its Administrative General Partner
By: UP Holdings,LLC, an Illinois
limited liability company, dba UP
Holdings California, LLC, its
Managing Member
By:
Name: Jessica l,loff Berzac
Title: President
By: RHCB Crossroads LLC, a California
limited liability company, its
Member
By: RI-1 Community Builders LP,
a California limited
partnership, its Sole Member
Subordination Agreement
(Regulatory Agreement) S-3 Crossroads Village
(7'XMT0RN kALL-PURPOSE 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
validi!j of that document.
T_lli,noj $
STATE OF EAH0r
COUNTY OF U Q 1h
On,41 a Q 1.16�_) _befa,re me-,SA'av% eta+,L Q%1A, _�(hem insert name and title of the
officer), personally appeared :n {_ 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 true that hd&they executed the same in WZEaytbeir authorized capacity(' s),
and that by hisX&thejr signatureWon the instrument the person or the entity upon behalf of
which the person,(pj acted,executed the instrument.
t11;nb i S
i certify under PENALTY OF PERJURY under the laws of the State of'4E'allfam�i 'that tho foregoing
paragraph is true and correct.
AITTEN
WITNESS my hand and official seal. SAOFFIC AFL SEAL
Notary Public,State of Illinois
Signature� s(:, (Seal) nay commission Fxpires
September 09,2025
Subordination Agreement
(Regulatory Agreement) Crossroads Village
By: WR13H LLC, a
California limited
liabiqRiiticd
its GBy:NamTitle
Subordination Agreement
(Regulatory Agreement) S_4 Crossroads viIlase
CALWORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifics only the identity of the individual
who signed the document to 'Which this certificate is attached, and not the truthfulness, accuracy, or
validity of that document.
STATE OF CALIFORNIA
COUNTY OF.... .
On 4-10 - Z 3 before me, 7Ut i L-AfwiNe- (here insert name and title of the
officer), personally appeared k,e eAtV kdAu= who proved to me on the basis of
satisfactory evidence to be the pers�hose name(Y) 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 behaf f of
which the person(s)acted, executed the instrument.
1 certify under PENA TY OF P "RJUR'Y under the laws of the State of California that the foregoing
paragraph is a zd co ect.
WITNES my a ff i s
Signature _ (Seal)
ALLISON L.MOORE
Comm, #2335733 z
Notar Fresno County
My Comm.Ex�rss Nov.I t,2t12a
Subordination Agreement
(Regulatory Abreeirlent) Crossroads Village
EXHIBIT A
Legal Description of the Property
Real property in The County of Fresno, City of Fresno, State of California, and is described as
follows:
[To be inserted]
Subordination Agreement
(Regulatory Agreement) A-1 Crossroads Village