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HomeMy WebLinkAbout2017 CON HA (Subordination Agreement) Summercrest Apartments Jones Lang Lasalle - 2721 Plaza BlvdNOTE TO FILE 11-27-17 IN THE MATTER OF: Resolution of the City Council of the City of National City authorizing the Executive Director to execute a Subordination Agreement with Jones Lang LaSalle Multifamily, LLC, subordinating the project Deed of Trust that secures the declaration of covenants, conditions, and restrictions (tenant restrictions) on Summercrest Apartments located at 2721 East Plaza Boulevard in National City. Please note the following: NO SUBORDINATION AGREEMENT WAS EVER EXECUTED DUE TO CANCELLATION OF REFINANCE PER CARLOS AGUIRRE ON 11-22-2017 NO AGREEMENT WAS FILED WITH THE OFFICE OF THE CITY CLERK ORIGINATING DEPARTMENT: NTF CDC X Housing & Grants City Attorney Human Resources City Manager _ MIS Community Svcs. _ Planning Engineering _Police Finance Public Works Fire Cheryl Newell From: Carlos Aguirre Sent: Wednesday, November 22, 2017 5:51 PM To: Mike Dalla Cc: Cheryl Newell Subject: Resolution 2017-56 Attachments: Reso 2017-56.pdf Hello Mr. Dalla, This email is to inform you that the Subordination Agreement referenced in Resolution 2017-56 of the Community Development Commission -Housing Authority of the City of National City was never executed as the refinancing of the property was cancelled. If you have any further questions or need additional information please let me know. Regards, Carlos Aguirre Housing and Economic Development Manager Direct: (619) 336-4391 caguirre@nationalcityca.gov City of National City Housing & Economic Development Department 140 E 12th Street, Suite B, National City, CA 91950 City Offices are open M -TH 7am-6pm; Closed on Fridays 1 0 RESOLUTION NO. 2017 — 56 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION -HOUSING AUTHORITY OF THE CITY OF NATIONAL CITY AUTHORIZING THE EXECUTIVE DIRECTOR TO EXECUTE A SUBORDINATION AGREEMENT WITH JONES LANG LASALLE MULTIFAMILY, LLC, SUBORDINATING THE PROJECT DEED OF TRUST THAT SECURES THE DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS (TENANT RESTRICTIONS) ON SUMMERCREST APARTMENTS LOCATED AT 2721 EAST PLAZA BOULEVARD IN NATIONAL CITY WHEREAS, Summercrest Apartments, LP, a limited partnership organized under the laws of the State of Delaware ("Borrower"), is the owner of a 372 unit multifamily rental housing project ("Project") known as Summercrest Apartments located at 2721 Plaza Boulevard in National City; and WHEREAS, in 2001, the Community Development Commission —Housing Authority of the City of National City ("CDC -HA") made a loan for $500,000 from the HOME Investment Partnerships Program and the Low and Moderate Income Fund to assist in the substantial rehabilitation of the Project and the loan was paid in full to the CDC -HA when the property was sold to the Borrower in 2013; and WHEREAS, in consideration of receiving financial assistance, the CDC -HA restricted the affordability of 370 units through April 15, 2032 by recording a Declaration of Covenants, Conditions and Restrictions ("Declaration") and securing the Declaration with a Project Deed of Trust ("Deed of Trust"); and WHEREAS, the Borrower desires to refinance the Project with a new mortgage for the original principal amount of $48,500,000 from Jones Lang LaSalle Multifamily, LLC ("Lender"); and WHEREAS, in order to provide the loan, the Lender requires the subordination of the Project Deed of Trust that secures the Declaration. NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission -Housing Authority of the City of National City hereby authorizes the Executive Director or authorized designee to execute a Subordination Agreement with Jones Lang Lasalle Multifamily, LLC, and any other Escrow related documents as necessary, subordinating the Project Deed of Trust that secures the Declaration of Covenants, Conditions, and Restrictions (Tenant Restrictions) on Summercrest Apartments located at 2721 East Plaza Boulevard in National City. After being recorded by the County of San Diego, a copy of said Subordination Agreement will be on file in the office of the City Clerk. [Signature Page to Follow] CDC -HA Resolution No. 2016 — 56 Page Two PASSED and ADOPTED this 1' day of August, 201 ATTEST: Leslie Deese, Secretary APPROV I 0 FORM: Ron Morrison, Chairman 0 Passed and adopted by the Community Development Commission -Housing Authority of the City of National City, California, on August 1, 2017 by the following vote, to -wit: Ayes: Commissioners Cano, Mendivil, Morrison, Rios, Sotelo-Solis. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Chairman, Housing Authority Secretary, Housing Authority By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2017-56 of the Community Development Commission -Housing Authority of the City of National City, California, passed and adopted on August 1, 2017. Secretary, Housing Authority By: Deputy CITY OF NATIONAL CITY, CALIFORNIA COMMUNITY DEVELOPMENT COMMISSION -HOUSING AUTHORITY COUNCIL AGENDA STATEMENT IEETING DATE: August 1, 2017 AGENDA ITEM NO. 29 ITEM TITLE: Resolution of the Community Development Commission -Housing Authority of the City of National City authorizing the Executive Director to execute a Subordination Agreement with Jones Lang LaSalle Multifamily, LLC, subordinating the Project Deed of Trust that secures the Declaration of Covenants, Conditions and Restrictions (Tenant Restrictions) on Summercrest Apartments located at 2721 Plaza Boulevard in National City. PREPARED BY: Carlos Aguirre, Housing & Econ. Dev. Mgr. PHONE: 1619 336-4391 APPROVEEVY: EXPLANATION: Summercrest Apartments, LP, a limited liability partnership organized under the laws of the State of Delaware ("Borrower") is the owner of a 372 unit multifamily rental housing project ("Project") known as Summercrest Apartments located at 2721 Plaza Boulevard in National City. In 2001, the Community Development Commission ("CDC -HA") made a loan for $500,000 from the HOME Investment Partnerships Program and the Low and Moderate Income Fund to assist in the substantial rehabilitation of the Project and the loan was paid in full to the CDC -HA when the property was sold to the Borrower in 2013. In consideration of receiving financial assistance, the CDC -HA restricted the affordability of 370 units through April 15, 2032 by recording a Declaration of Covenants, Conditions, and Restrictions ("Declaration") and securing the Declaration with a Project Deed of Trust ("Deed of Trust"). The Borrower iesires to refinance the Project with a new mortgage for the original principal amount of $48,500,000 from lones Lang LaSalle Multifamily, LLC ("Lender"). In order to provide the loan, the Lender requires the subordination of the Project Deed of Trust that secures the Declaration. DEPARTMENT: HB.ysing & Economic Dev. FINANCIAL STATEMENT: APPROVED: ACCOUNT NO. APPROVED: There is no fiscal impact to the CDC -Housing Authority. ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: Finance MIS STAFF RECOMMENDATION: Staff recommends the adoption of a resolution to execute the Subordination Agreement. BOARD / COMMISSION RECOMMENDATION: IN/A 1TTACHMENTS: 1. Subordination Agreement 2. Resolution /2esalu4-0y, Po. 2oP -56 Hp, Attachment No. 1 RECORDING REQUESTED BY: JONES LANG LASALLE MULTIFAMILY, LLC, 2177 Youngman Avenue, Suite 300, St. Paul, MN 55116 Attention: Loan Servicing WHEN RECORDED RETURN TO: Thomas P. Wild, Esq. Wild Law Group, LLC 475 Wall Street Princeton, New Jersey 08540 SPACE ABOVE LINE FOR RECORDER'S USE SUBORDINATION AGREEMENT GOVERNMENTAL ENTITY (Revised 3-1-2014) Subordination Agreement — Governmental Entity Page 1 Freddie Mac Loan Number: Attachment No. 1 Property Name: Summercrest Apartments SUBORDINATION AGREEMENT GOVERNMENTAL ENTITY (Revised 3-1-2014) THIS SUBORDINATION AGREEMENT ("Agreement") is entered into this day of , 2017, by and between (i) JONES LANG LASALLE MULTIFAMILY, LLC, a limited liability company organized and existing under the laws of the State of Delaware ("Senior Mortgagee") and (ii) COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, acting in its capacity as the Housing Authority of the City of National City ("Subordinate Mortgagee"). RECITALS A. Summercrest Apartments, LP, a limited partnership organized under the laws of the State of Delaware ("Borrower") is the owner of certain land located in San Diego County, California, described in Exhibit A ("Land"). The Land is improved with a multifamily rental housing project ("Improvements"). B. Senior Mortgagee has made or is making a loan to Borrower in the original principal amount of $ ("Senior Loan") upon the terms and conditions of a Multifamily Loan and Security Agreement dated as of the date hereof between Senior Mortgagee and Borrower ("Senior Loan Agreement") in connection with the Mortgaged Property. The Senior Loan is secured by a Multifamily Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing, dated as of the date hereof ("Senior Mortgage") encumbering the Land, the Improvements and related personal and other property described and defined in the Senior Mortgage as the "Mortgaged Property." C. Subordinate Mortgagee is the holder of a Declaration of Covenants and Restrictions (Tenant Restrictions)("Regulatory Agreement"), dated December 18, 2001, executed by Plaza Manor Preservation, L.P. and recorded June 19, 2002 in the office of the County Recorder of San Diego County, California ("Recording Office") as Document Number 2002-0518422 and assumed by Borrower pursuant to a certain Assignment and Assumption of Declaration of Covenants and Restrictions and Deed of Trust dated December 19, 2013 and recorded in the Recorder's Office as Instrument No. 2013- 735297 ("Assumption Agreement") which Regulatory Agreement is secured by that certain Project Deed of Trust encumbering all or a portion of the Mortgaged Property, dated December 18, 2001, executed by Plaza Manor Preservation, L.P. and recorded June 19, 2002 in the Recorder's Office as Instrument No.2002-0518423 ("Subordinate Mortgage") as assumed by the Borrower pursuant to the Assumption Agreement. Subordination Agreement — Governmental Entity Page 2 Attachment No. 1 D. The Senior Mortgage will be recorded in the Recording Office concurrently herewith. E. The execution and delivery of this Agreement is a condition of Senior Mortgagee's making of the Senior Loan. NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows: 1. Definitions. The following terms, when used in this Agreement (including, as appropriate, when used in the above recitals), will have the following meanings. (a) The terms "Condemnation," "Imposition Deposits," "Impositions," "Leases," "Rents" and "Restoration," as well as any term used in this Agreement and not otherwise defined in this Agreement, will have the meanings given to those terms in the Senior Loan Agreement. (b) "Bankruptcy Proceeding" means any bankruptcy, reorganization, insolvency, composition, restructuring, dissolution, liquidation, receivership, assignment for the benefit of creditors, or custodianship action or proceeding under any federal or state law with respect to Borrower, any guarantor of any of the Senior Indebtedness, any of their respective properties, or any of their respective partners, members, officers, directors, or shareholders. (c) "Borrower" means all persons or entities identified as "Borrower" in the first Recital of this Agreement, together with their successors and assigns, and any other person or entity who acquires title to the Mortgaged Property after the date of this Agreement; provided that the term "Borrower" will not include Senior Mortgagee if Senior Mortgagee acquire titles to the Mortgaged Property. (d) "Casualty" means the occurrence of damage to or loss of all or any portion of the Mortgaged Property by fire or other casualty. (e) "Enforcement Action" means any of the following actions taken by or at the direction of Subordinate Mortgagee: the advertising of or commencement of any foreclosure or trustee's sale proceedings, the exercise of any power of sale, the acceptance of a deed or assignment in lieu of foreclosure or sale, the collecting of Rents, the obtaining of or seeking of the appointment of a receiver, the seeking of default interest, the taking of possession or control of any of the Mortgaged Property, the commencement of any suit or other legal, administrative, or arbitration proceeding based upon the Regulatory Agreement, the exercise of any other remedial action against Borrower, any other party liable or obligated under any of the Subordinate Mortgage, Regulatory Agreement, or the Mortgaged Property. Subordination Agreement — Governmental Entity Page 3 Attachment No. 1 (f) "Enforcement Action Notice" means a written notice from Subordinate Mortgagee to Senior Mortgagee, given following one or more Subordinate Mortgage Default(s) and the expiration of any notice or cure periods provided for such Subordinate Mortgage Default(s) in the Subordinate Mortgage or the Regulatory Agreement, setting forth in reasonable detail the Subordinate Mortgage Default(s) and the Enforcement Actions proposed to be taken by Subordinate Mortgagee. (g) "Loss Proceeds" means all monies received or to be received under any insurance policy, from any condemning authority, or from any other source, as a result or any Condemnation or Casualty. (h) "Notice" is defined in Section 7(d). (i) "Regulatory Agreement" means the Regulatory Agreement, as defined in the Recitals. (j) "Senior Indebtedness" means the "Indebtedness" as defined in the Senior Loan Agreement. (k) "Senior Loan Documents" means the "Loan Documents" as defined in the Senior Loan Agreement. (1) "Senior Mortgage Default" means any act, failure to act, event, condition, or occurrence which constitutes, or which with the giving of Notice or the passage of time, or both, would constitute, an "Event of Default" as defined in the Senior Loan Agreement. (m) "Senior Mortgagee" means the "Lender" as defined in the Senior Mortgage. When any other person or entity becomes the legal holder of the Senior Note, such other person or entity automatically will become Senior Mortgagee. (n) "Senior Note" means the promissory note or other evidence of the Senior Indebtedness referred to in the Senior Loan Agreement and any replacement of the Senior Note. (o) (p) (q) Reserved. Reserved. "Subordinate Mortgage Default" means any act, failure to act, event, condition, or occurrence which allows (but for any contrary provision of this Agreement), or which with the giving of Notice or the passage of time, or both, would allow (but for any contrary provision of this Agreement), Subordinate Mortgagee to take an Enforcement Action. Subordination Agreement — Governmental Entity Page 4 Attachment No. 1 (r) "Subordinate Mortgagee" means the person or entity named as such in the first paragraph of this Agreement and any other person or entity who becomes the legal holder of the Subordinate Note after the date of this Agreement. 2. Reserved. 3. Subordination of Subordinate Mortgage. (a) The Subordinate Mortgage is, and will at all times remain, subject and subordinate in all respects to the liens, terms, covenants, conditions, operations, and effects of each of the Senior Loan Documents. (b) The subordination of the Subordinate Mortgage will apply and continue notwithstanding (i) the actual date and time of execution, delivery, recording, filing or perfection of each of the Senior Loan Documents and the Subordinate Mortgage, and (ii) the availability of any collateral to Senior Mortgagee, including the availability of any collateral other than the Mortgaged Property. (c) By reason of, and without in any way limiting, the full subordination of the Subordinate Mortgage provided for in this Agreement, all rights and claims of Subordinate Mortgagee under the Subordinate Mortgage in or to all or any portion of the Mortgaged Property are expressly subject and subordinate in all respects to the rights and claims of Senior Mortgagee under the Senior Loan Documents in or to the Mortgaged Property. (d) If Subordinate Mortgagee, by indemnification, subrogation or otherwise, acquires any lien, estate, right or other interest in any of the Mortgaged Property, then that lien, estate, right or other interest will be fully subject and subordinate to the receipt by Senior Mortgagee of payment in full of the Senior Indebtedness, and to the Senior Loan Documents, to the same extent as the Subordinate Mortgage is subordinate pursuant to this Agreement. 4. Additional Representations and Covenants. (a) Subordinate Mortgagee represents and warrants that each of the following is true: (i) Subordinate Mortgagee is now the owner and holder of the Subordinate Mortgage. (ii) The Regulatory Agreement and the Subordinate Mortgage are now in full force and effect. (iii) The Regulatory Agreement and the Subordinate Mortgage have not been modified or amended. Subordination Agreement — Governmental Entity Page 5 Attachment No. 1 (iv) To the actual knowledge of the Subordinate Mortgagee, as of the date of this Agreement, no Regulatory Agreement nor Subordinate Mortgage Default has occurred. (v) None of the rights of Subordinate Mortgagee under the Regulatory Agreement or the Subordinate Mortgage are subject to the rights of any third parties, by way of subrogation, indemnification or otherwise. (b) Without the prior written consent of Senior Mortgagee in each instance, Subordinate Mortgagee will not do any of the following: (i) Amend, modify, waive, extend, renew, or replace any provision of the Regulatory Agreement and the Subordinate Mortgage. (ii) Pledge, assign, transfer, convey, or sell any interest in the Regulatory Agreement and the Subordinate Mortgage. (iii) reserved. (v) Appear in, defend or bring any action to protect Subordinate Mortgagee's interest in the Mortgaged Property. (vi) Take any action concerning environmental matters affecting the Mortgaged Property. (c) Subordinate Mortgagee will deliver to Senior Mortgagee a copy of each Notice received or delivered by Subordinate Mortgagee pursuant to the Regulatory Agreement or the Subordinate Mortgage, simultaneously with Subordinate Mortgagee's delivery or receipt of such Notice. Senior Mortgagee will deliver to Subordinate Mortgagee in the manner required in Section 5(b) a copy of each Notice of a Senior Mortgage Default delivered to Borrower by Senior Mortgagee. Neither giving nor failing to give a Notice to Senior Mortgagee or Subordinate Mortgagee pursuant to this Section 4(c) will affect the validity of any Notice given by Senior Mortgagee or Subordinate Mortgagee to Borrower, as between Borrower and such of Senior Mortgagee or Subordinate Mortgagee as provided the Notice to Borrower. (d) Without the prior written consent of Senior Mortgagee in each instance, Subordinate Mortgagee will not commence, or join with any other creditor in commencing, any Bankruptcy Proceeding. In the event of a Bankruptcy Proceeding, Subordinate Mortgagee will not vote affirmatively in favor of any plan of reorganization or liquidation unless Senior Mortgagee has also voted affirmatively in favor of such plan. In the event of any Bankruptcy Proceeding, Subordinate Mortgagee will not contest the continued accrual of interest on the Senior Indebtedness, in accordance with and at the rates specified in the Senior Subordination Agreement — Governmental Entity Page 6 Attachment No. 1 Loan Documents, both for periods before and for periods after the commencement of such Bankruptcy Proceedings. (e) [Intentionally Omitted.]. (f) All requirements pertaining to insurance under the Subordinate Mortgage (including requirements relating to amounts and types of coverages, deductibles and special endorsements) will be deemed satisfied if Borrower complies with the insurance requirements under the Senior Loan Documents and of Senior Mortgagee. All original policies of insurance required pursuant to the Senior Loan Documents will be held by Senior Mortgagee. Nothing in this Section 4(f) will preclude Subordinate Mortgagee from requiring that it be named as a mortgagee and loss payee, as its interest may appear, under all policies of property damage insurance maintained by Borrower with respect to the Mortgaged Property, provided such action does not affect the priority of payment of Loss Proceeds, or that Subordinate Mortgagee be named as an additional insured under all policies of liability insurance maintained by Borrower with respect to the Mortgaged Property. (g) In the event of a Condemnation or a Casualty, all of the following provisions will apply: (i) The rights of Subordinate Mortgagee (under the Subordinate Mortgage or otherwise) to participate in any proceeding or action relating to a Condemnation or a Casualty, or to participate or join in any settlement of, or to adjust, any claims resulting from a Condemnation or a Casualty, will be and remain subordinate in all respects to Senior Mortgagee's rights under the Senior Loan Documents with respect thereto, and Subordinate Mortgagee will be bound by any settlement or adjustment of a claim resulting from a Condemnation or a Casualty made by Senior Mortgagee. (ii) All Loss Proceeds will be applied either to payment of the costs and expenses of Restoration or to payment on account of the Senior Indebtedness, as and in the manner determined by Senior Mortgagee in its sole discretion. (iii) If Senior Mortgagee applies or releases Loss Proceeds for the purposes of Restoration of the Mortgaged Property, then Subordinate Mortgagee will release for such purpose all of its right, title and interest, if any, in and to such Loss Proceeds. If Senior Mortgagee holds Loss Proceeds, or monitors the disbursement thereof, Subordinate Mortgagee will not do so. Nothing contained in this Agreement will be deemed to require Senior Mortgagee to act for or on behalf of Subordinate Mortgagee in connection with any Restoration or to hold or monitor any Loss Proceeds in trust for or otherwise on behalf of Subordinate Mortgagee, and all or any Loss Proceeds may be commingled with any funds of Senior Mortgagee. Subordination Agreement —Governmental Entity Page 7 Attachment No. 1 (iv) If Senior Mortgagee elects to apply Loss Proceeds to payment on account of the Senior Indebtedness, and if the application of such Loss Proceeds results in the payment in full of the entire Senior Indebtedness, any remaining Loss Proceeds held by Senior Mortgagee will be paid to Subordinate Mortgagee unless another party has asserted a claim to the remaining Loss Proceeds. (h) Subordinate Mortgagee will enter into attornment and non -disturbance agreements with all tenants under commercial or retail Leases, if any, to whom Senior Mortgagee has granted attornment and non -disturbance, on the same terms and conditions given by Senior Mortgagee. (i) Regardless of any contrary provision in the Subordinate Mortgage, Subordinate Mortgagee will not collect payments for the purpose of escrowing for any cost or expense related to the Mortgaged Property. (j) Reserved. (k) Senior Mortgagee may amend, waive, postpone, extend, renew, replace, reduce or otherwise modify any provisions of the Senior Loan Documents without the necessity of obtaining the consent of or providing Notice to Subordinate Mortgagee, and without affecting any of the provisions of this Agreement. Notwithstanding the foregoing, Senior Mortgagee may not modify any provision of the Senior Loan Documents that increases the Senior Indebtedness, except for increases in the Senior Indebtedness that result from advances made by Senior Mortgagee to protect the security or lien priority of Senior Mortgagee under the Senior Loan Documents or to cure defaults under the Subordinate Documents. 5. Default Under Loan Documents. (a) For a period of 90 days following delivery to Senior Mortgagee of an Enforcement Action Notice, Senior Mortgagee will have the right, but not the obligation, to cure any Subordinate Mortgage Default, provided that if such Subordinate Mortgage Default is a non -monetary default and is not capable of being cured within such 90-day period and Senior Mortgagee has commenced and is diligently pursuing such cure to completion, Senior Mortgagee will have such additional period of time as may be required to cure such Subordinate Mortgage Default or until such time, if ever, as Senior Mortgagee (i) discontinues its pursuit of any cure and/or (ii) delivers to Subordinate Mortgagee Senior Mortgagee's written consent to the Enforcement Action described in the Enforcement Action Notice. Senior Mortgagee will not be subrogated to the rights of Subordinate Mortgagee under the Subordinate Documents by reason of Senior Mortgagee having cured any Subordinate Mortgage Default. However, Subordinate Mortgagee acknowledges that all amounts advanced or expended by Senior Mortgagee in accordance with the Senior Loan Documents or to cure a Subordinate Subordination Agreement — Governmental Entity Page 8 Attachment No. 1 Mortgage Default will be added to and become a part of the Senior Indebtedness and will be secured by the lien of the Senior Mortgage. (b) Senior Mortgagee will deliver to Subordinate Mortgagee a copy of any Notice sent by Senior Mortgagee to Borrower of a Senior Mortgage Default within 5 Business Days of sending such Notice to Borrower. Failure of Senior Mortgagee to send Notice to Subordinate Mortgagee will not prevent the exercise of Senior Mortgagee's rights and remedies under the Senior Loan Documents. Subordinate Mortgagee will have the right, but not the obligation, to cure any monetary Senior Mortgage Default within 30 days following the date of such Notice; provided, however, that Senior Mortgagee will be entitled during such 30-day period to continue to pursue its remedies under the Senior Loan Documents. Subordinate Mortgagee may, within 90 after the date of the Notice, cure a non - monetary Senior Mortgage Default if during such 90-day period, Subordinate Mortgagee keeps current all payments required by the Senior Loan Documents. If such a non -monetary Senior Mortgage Default creates an unacceptable level of risk relative to the Mortgaged Property, or Senior Mortgagee's secured position relative to the Mortgaged Property, as determined by Senior Mortgagee in its sole discretion, then during such 90-day period Senior Mortgagee may exercise all available rights and remedies to protect and preserve the Mortgaged Property and the Rents, revenues and other proceeds from the Mortgaged Property. Subordinate Mortgagee will not be subrogated to the rights of Senior Mortgagee under the Senior Loan Documents by reason of Subordinate Mortgagee having cured any Senior Mortgage Default. However, Senior Mortgagee acknowledges that all amounts paid by Subordinate Mortgagee to Senior Mortgagee to cure a Senior Mortgage Default will be deemed to have been advanced by Subordinate Mortgagee pursuant to, and will be secured by the lien of, the Subordinate Mortgage. Notwithstanding anything in this Section 5(b) to the contrary, Subordinate Mortgagee's right to cure any Senior Mortgage Default will terminate immediately upon the occurrence of any Bankruptcy Proceeding. (c) In the event of a Subordinate Mortgage Default, Subordinate Mortgagee will not commence any Enforcement Action until 90 days after Subordinate Mortgagee has delivered to Senior Mortgagee an Enforcement Action Notice with respect to such Enforcement Action, provided that during such 90-day period or such longer period as provided in Section 5(a), Subordinate Mortgagee will be entitled to seek specific performance to enforce covenants and agreements of Borrower relating to income, rent, or affordability restrictions contained in the Regulatory Agreement, subject to Senior Mortgagee's right to cure a Subordinate Mortgage Default set forth in Section 5(a). Subordinate Mortgagee may not commence any other Enforcement Action, including any foreclosure action under the Subordinate Mortgage, until the earlier of (i) the expiration of such 90-day period or such longer period as provided in Section 5(a), or (ii) the delivery by Senior Mortgagee to Subordinate Mortgagee of Senior Mortgagee's written consent to such Enforcement Action by Subordinate Mortgagee. Subordinate Mortgagee Subordination Agreement — Governmental Entity Page 9 Attachment No. 1 acknowledges that Senior Mortgagee may grant or refuse consent to Subordinate Mortgagee's Enforcement Action in Senior Mortgagee's sole and absolute discretion. At the expiration of such 90-day period or such longer period as provided in Section 5(a) and, subject to Senior Mortgagee's right to cure set forth in Section 5(a), Subordinate Mortgagee may commence any Enforcement Action. Any Enforcement Action on the part of Subordinate Mortgagee will be subject to the provisions of this Agreement. Subordinate Mortgagee acknowledges that the provisions of this Section 5(c) are fair and reasonable under the circumstances, that Subordinate Mortgagee has received a substantial benefit from Senior Mortgagee having granted its consent to the Subordinate Mortgage, and that Senior Mortgagee would not have granted such consent without the inclusion of these provisions in this Agreement. (d) Senior Mortgagee may pursue all rights and remedies available to it under the Senior Loan Documents, at law, or in equity, regardless of any Enforcement Action Notice or Enforcement Action by Subordinate Mortgagee. No action or failure to act on the part of Senior Mortgagee in the event of a Subordinate Mortgage Default or commencement of an Enforcement Action will constitute a waiver on the part of Senior Mortgagee of any provision of the Senior Loan Documents or this Agreement. (e) If the Enforcement Action taken by Subordinate Mortgagee is the appointment of a receiver for any of the Mortgaged Property, all of the Rents, issues, profits and proceeds collected by the receiver will be paid and applied by the receiver solely to and for the benefit of Senior Mortgagee until the Senior Indebtedness will have been paid in full. (f) Subordinate Mortgagee consents to and authorizes the release by Senior Mortgagee of all or any portion of the Mortgaged Property from the lien, operation, and effect of the Senior Loan Documents. Subordinate Mortgagee waives to the fullest extent permitted by law, all equitable or other rights it may have (i) in connection with the release of all or any portion of the Mortgaged Property, (ii) to require the separate sale of any portion of the Mortgaged Property, (iii) to require Senior Mortgagee to exhaust its remedies against all or any portion of the Mortgaged Property or any combination of portions of the Mortgaged Property or any other collateral for the Senior Indebtedness, or (iv) to require Senior Mortgagee to proceed against Borrower, any other party that may be liable for any of the Senior Indebtedness (including any general partner of Borrower if Borrower is a partnership), all or any portion of the Mortgaged Property or combination of portions of the Mortgaged Property or any other collateral, before proceeding against all or such portions or combination of portions of the Mortgaged Property as Senior Mortgagee determines. Subordinate Mortgagee waives to the fullest extent permitted by law any and all benefits under California Civil Code Sections 2845, 2849 and 2850. Subordinate Mortgagee consents to and authorizes, at the option of Senior Mortgagee, the sale, either separately or together, of all or any portion of the Mortgaged Property. Subordination Agreement — Governmental Entity Page 10 (g) Attachment No. 1 Subordinate Mortgagee acknowledges that without Notice to Subordinate Mortgagee and without affecting any of the provisions of this Agreement, Senior Mortgagee may (i) extend the time for or waive any payment or performance under the Senior Loan Documents; (ii) modify or amend in any respect any provision of the Senior Loan Documents; and (iii) modify, exchange, surrender, release, and otherwise deal with any additional collateral for the Senior Indebtedness. If any party other than Borrower (including Senior Mortgagee) acquires title to any of the Mortgaged Property pursuant to a foreclosure of, or trustee's sale or other exercise of any power of sale under the Senior Mortgage conducted in accordance with applicable law, the lien, operation, and effect of the Subordinate Mortgage automatically will terminate with respect to such Mortgaged Property. 6. Amendment to Regulatory Agreement upon a Foreclosure If any party other than Borrower (including Senior Mortgagee) acquires title to any of the Mortgaged Property pursuant to a foreclosure of, or trustee's sale or other exercise of any power of sale under the Senior Mortgage conducted in accordance with applicable law, any and all provisions of the Regulatory Agreement concerning any of the following subjects shall be terminated and of no further force and effect: (a) Remedies relating to the appointment of receiver, injunctive relief or other remedies that relate to the possession or control of the Rents, issues, profits and proceeds of the Mortgaged Property. (b) Remedies relating to the Subordinate Mortgagee's ability to take possession of the Mortgaged Property. (c) Provisions relating to the Subordinate Mortgagee's ability to remove or replace the property manager. (d) Provisions relating to the establishment of an operating reserve, replacement reserve or other reserve or escrow account. Notwithstanding the foregoing nothing set forth above is intended, nor will it be construed, to in any way limit the exercise by Subordinate Mortgagee of its governmental powers (including police, regulatory and taxing powers) with respect to the enforcement of the provisions of the Regulatory Agreement All other terms and conditions of the Regulatory Agreement shall remain in full force and effect. Subordination Agreement — Governmental Entity Page 11 Attachment No. 1 7. Miscellaneous Provisions. (a) If there is any conflict or inconsistency between the terms of the Subordinate Documents and the terms of this Agreement, then the terms of this Agreement will control. (b) This Agreement will be binding upon and will inure to the benefit of the respective legal successors and permitted assigns of the parties to this Agreement. No other party will be entitled to any benefits under this Agreement, whether as a third -party beneficiary or otherwise. (c) This Agreement does not constitute an approval by Senior Mortgagee of the terms of the Subordinate Documents. (d) Each notice, request, demand, consent, approval or other communication (collectively, "Notices," and singly, a "Notice") which is required or permitted to be given pursuant to this Agreement will be in writing and will be deemed to have been duly and sufficiently given if (i) personally delivered with proof of delivery (any Notice so delivered will be deemed to have been received at the time so delivered), or (ii) sent by a national overnight courier service (such as FedEx) designating earliest available delivery (any Notice so delivered will be deemed to have been received on the next Business Day following receipt by the courier), or (iii) sent by United States registered or certified mail, return receipt requested, postage prepaid, at a post office regularly maintained by the United States Postal Service (any Notice so sent will be deemed to have been received on the date of delivery as confirmed by the return receipt), addressed to the respective parties as follows: (i) Notices intended for Senior Mortgagee will be addressed to: Jones Lang LaSalle Multifamily, LLC 2177 Youngman Avenue, Suite 300 St. Paul, MN 55116 Attention: Loan Servicing (ii) Notices intended for Subordinate Mortgagee will be addressed to: Community Development Commission Housing Authority of the City of National City 140 East 12th Street, Suite B National City, CA 91950 Attention: Executive Director Any party, by Notice given pursuant to this Section, may change the person or persons and/or address or addresses, or designate an additional person or persons Subordination Agreement — Governmental Entity Page 12 Attachment No. 1 or an additional address or addresses, for its Notices, but Notice of a change of address will only be effective upon receipt. Neither party will refuse or reject delivery of any Notice given in accordance with this Section. (e) Nothing in this Agreement or in any of the Senior Loan Documents or Subordinate Documents will be deemed to constitute Senior Mortgagee as a joint venturer or partner of Subordinate Mortgagee. (f) Upon Notice from Senior Mortgagee, Subordinate Mortgagee will execute and deliver such additional instruments and documents, and will take such actions, as are required by Senior Mortgagee in order to further evidence or implement the provisions and intent of this Agreement. (g) This Agreement will be governed by the laws of the State in which the Land is located. (h) If any one or more of the provisions contained in this Agreement, or any application of any such provisions, is invalid, illegal, or unenforceable in any respect, the validity, legality, enforceability, and application of the remaining provisions contained in this Agreement will not in any way be affected or impaired. (i) The term of this Agreement will commence on the date of this Agreement and will continue until the earliest to occur of the following events: (i) the payment of all of the Senior Indebtedness; provided that this Agreement will be reinstated in the event any payment on account of the Senior Indebtedness is avoided, set aside, rescinded or repaid by Senior Mortgagee as described in Section 2(e) of this Agreement, (ii) the expiration or other termination of the Regulatory Agreement, (iii) the acquisition by Senior Mortgagee or by a third party purchaser of title to the Mortgaged Property pursuant to a foreclosure of, deed in lieu of foreclosure, or trustee's sale or other exercise of a power of sale or similar disposition under the Senior Mortgage; or (iv) with the prior written consent of Senior Mortgagee, without limiting the provisions of Section 5(d), the acquisition by Subordinate Mortgagee of title to the Mortgaged Property subject to the Senior Mortgage pursuant to a foreclosure, or a deed in lieu of foreclosure, of (or the exercise of a power of sale under) the Subordinate Mortgage. (j) No failure or delay on the part of any party to this Agreement in exercising any right, power, or remedy under this Agreement will operate as a waiver of such right, power, or remedy, nor will any single or partial exercise of any such right, power or remedy preclude any other or further exercise of such right, power, or remedy or the exercise of any other right, power or remedy under this Agreement. (k) Each party to this Agreement acknowledges that if any party fails to comply with its obligations under this Agreement, the other parties will have all rights Subordination Agreement — Governmental Entity Page 13 (1) Attachment No. I available at law and in equity, including the right to obtain specific performance of the obligations of such defaulting party and injunctive relief. Nothing in this Agreement is intended, nor will it be construed, to in any way limit the exercise by Subordinate Mortgagee of its governmental powers (including police, regulatory and taxing powers) with respect to Borrower or the Mortgaged Property to the same extent as if it were not a party to this Agreement or the transactions contemplated by this Agreement. (m) This Agreement may be assigned at any time by Senior Mortgagee to any subsequent holder of the Senior Note. (n) This Agreement may be amended, changed, modified, altered or terminated only by a written instrument or written instruments signed by the parties to this Agreement. (o) This Agreement may be executed in two or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument. [Signature and acknowledgment pages follow] Subordination Agreement — Governmental Entity Page 14 Attachment No. 1 IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and year first above written. SENIOR MORTGAGEE: JONES LANG LASALLE MULTIFAMILY, LLC, a Delaware limited liability company By: Katie Mikul Closing Coordinator STATE OF MINNESOTA ) ) ss: COUNTY OF RAMSEY ) On this day of , 2017 before me, the undersigned officer, personally appeared Katie Mikul, to me known, who being by me duly sworn, did depose and say that she is the Closing Coordinator of JONES LANG LASLLE MULTIFAMILY, LLC, the company described in and which executed the foregoing instrument; and that by virtue of authority conferred upon her, she signed and delivered the foregoing instrument as the voluntary act and deed of said company. Notary Public Subordination Agreement — Governmental Entity Page 15 Attachment No. 1 SUBORDINATE MORTGAGEE: COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, ACTING IN ITS CAPACITY AS THE HOUSING AUTHORITY OF THE CITY OF NATIONAL CITY By: Leslie Deese, Executive Director Approved as to Form: By: Name: Title: [Acknowledgments continue on next page] Subordination Agreement —Governmental Entity Page 16 Attachment No. 1 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. ALL PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA COUNTY OF } } On , 2017, before me, , personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (NOTARY SEAL) ATTENTION NOTARY: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to another document. THIS CERTIFICATE MUST BE ATTACHED TO Title of Document Type THE DOCUMENT DESCRIBED AT RIGHT. Number of Pages Date of Document Signer(s) Other Than Named Above Subordination Agreement — Governmental Entity Page 17 Attachment No. 1 CONSENT OF BORROWER Borrower acknowledges receipt of a copy of this Subordination Agreement, dated , 2017, by and between JONES LANG LASALLE MULTIFAMILY, LLC, and COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, acting in its capacity as the Housing Authority of the City of National City and consents to the agreement of the parties set forth in this Agreement. BORROWER: SUMMERCREST APARTMENTS, LP a Delaware limited partnership By: AOF Summercrest LLC a Delaware limited liability company its: Managing General Partner By: AOF/Pacific Affordable Housing Corp., a California nonprofit public benefit corporation its: Sole Member By: Name: Title: By: Summercrest Apartments LLC a Delaware limited liability company its: Co -General Partner By: BLF Holdings, LLC a Washington limited liability company its: Sole Member By: The Brian L. Fitterer Revocable Trust A California Trust Its: Sole Member By: Brian L. Fitterer Trustee (Subordination Agreement -National City) Subordination Agreement — Governmental Entity Page 18 Attachment No. 1 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. ALL PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA COUNTY OF } ) On , 2017, before me, , personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (NOTARY SEAL) ATTENTION NOTARY: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to another document. THIS CERTIFICATE MUST BE ATTACHED TO Title of Document Type THE DOCUMENT DESCRIBED AT RIGHT. Number of Pages Date of Document Signer(s) Other Than Named Above Subordination Agreement — Governmental Entity Page 19 Attachment No. 1 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. ALL PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA COUNTY OF } } On , 2017, before me, , personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (NOTARY SEAL) ATTENTION NOTARY: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to another document. THIS CERTIFICATE MUST BE ATTACHED TO Title of Document Type THE DOCUMENT DESCRIBED AT RIGHT. Number of Pages Date of Document Signer(s) Other Than Named Above Subordination Agreement — Governmental Entity Page 20 Attachment No. I EXHIBIT A LEGAL DESCRIPTION Subordination Agreement — Governmental Entity Page 21 RESOLUTION NO. 2017 — 56 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION -HOUSING AUTHORITY OF THE CITY OF NATIONAL CITY AUTHORIZING THE EXECUTIVE DIRECTOR TO EXECUTE A SUBORDINATION AGREEMENT WITH JONES LANG LASALLE MULTIFAMILY, LLC, SUBORDINATING THE PROJECT DEED OF TRUST THAT SECURES THE DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS (TENANT RESTRICTIONS) ON SUMMERCREST APARTMENTS LOCATED AT 2721 EAST PLAZA BOULEVARD IN NATIONAL CITY WHEREAS, Summercrest Apartments, LP, a limited partnership organized under the laws of the State of Delaware ("Borrower"), is the owner of a 372 unit multifamily rental housing project ("Project") known as Summercrest Apartments located at 2721 Plaza Boulevard in National City; and WHEREAS, in 2001, the Community Development Commission —Housing Authority of the City of National City ("CDC -HA") made a loan for $500,000 from the HOME Investment Partnerships Program and the Low and Moderate Income Fund to assist in the substantial rehabilitation of the Project and the loan was paid in full to the CDC -HA when the property was sold to the Borrower in 2013; and WHEREAS, in consideration of receiving financial assistance, the CDC -HA restricted the affordability of 370 units through April 15, 2032 by recording a Declaration of Covenants, Conditions and Restrictions ("Declaration") and securing the Declaration with a Project Deed of Trust ("Deed of Trust"); and WHEREAS, the Borrower desires to refinance the Project with a new mortgage for the original principal amount of $48,500,000 from Jones Lang LaSalle Multifamily, LLC ("Lender"); and WHEREAS, in order to provide the loan, the Lender requires the subordination of the Project Deed of Trust that secures the Declaration. NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission -Housing Authority of the City of National City hereby authorizes the Executive Director or authorized designee to execute a Subordination Agreement with Jones Lang Lasalle Multifamily, LLC, and any other Escrow related documents as necessary, subordinating the Project Deed of Trust that secures the Declaration of Covenants, Conditions, and Restrictions (Tenant Restrictions) on Summercrest Apartments located at 2721 East Plaza Boulevard in National City. After being recorded by the County of San Diego, a copy of said Subordination Agreement will be on file in the office of the City Clerk. [Signature Page to Follow] CDC -HA Resolution No. 2016 — 56 Page Two PASSED and ADOPTED this 1st day of August, 2017. Ron Morrison, Chairman ATTEST: Leslie Deese, Secretary APPROVED AS TO FORM: Angil P. Morris -Jones General Counsel 0 RESOLUTION NO. 2017 — 56 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION -HOUSING AUTHORITY OF THE CITY OF NATIONAL CITY AUTHORIZING THE EXECUTIVE DIRECTOR TO EXECUTE A SUBORDINATION AGREEMENT WITH JONES LANG LASALLE MULTIFAMILY, LLC, SUBORDINATING THE PROJECT DEED OF TRUST THAT SECURES THE DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS (TENANT RESTRICTIONS) ON SUMMERCREST APARTMENTS LOCATED AT 2721 EAST PLAZA BOULEVARD IN NATIONAL CITY WHEREAS, Summercrest Apartments, LP, a limited partnership organized under the laws of the State of Delaware ("Borrower"), is the owner of a 372 unit multifamily rental housing project ("Project") known as Summercrest Apartments located at 2721 Plaza Boulevard in National City; and WHEREAS, in 2001, the Community Development Commission —Housing Authority of the City of National City ("CDC -HA") made a loan for $500,000 from the HOME Investment Partnerships Program and the Low and Moderate Income Fund to assist in the substantial rehabilitation of the Project and the loan was paid in full to the CDC -HA when the property was sold to the Borrower in 2013; and WHEREAS, in consideration of receiving financial assistance, the CDC -HA restricted the affordability of 370 units through April 15, 2032 by recording a Declaration of Covenants, Conditions and Restrictions ("Declaration") and securing the Declaration with a Project Deed of Trust ("Deed of Trust"); and WHEREAS, the Borrower desires to refinance the Project with a new mortgage for the original principal amount of $48,500,000 from Jones Lang LaSalle Multifamily, LLC ("Lender"); and WHEREAS, in order to provide the loan, the Lender requires the subordination of the Project Deed of Trust that secures the Declaration. NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission -Housing Authority of the City of National City hereby authorizes the Executive Director or authorized designee to execute a Subordination Agreement with Jones Lang Lasalle Multifamily, LLC, and any other Escrow related documents as necessary, subordinating the Project Deed of Trust that secures the Declaration of Covenants, Conditions, and Restrictions (Tenant Restrictions) on Summercrest Apartments located at 2721 East Plaza Boulevard in National City. After being recorded by the County of San Diego, a copy of said Subordination Agreement will be on file in the office of the City Clerk. [Signature Page to Follow] CDC -HA Resolution No. 2016 — 56 Page Two PASSED and ADOPTED this 1st day of August, 201 Ron Morrison, Chairman ATTEST: Leslie Deese, Secretary APPROV 0 FORM: Passed and adopted by the Community Development Commission -Housing Authority of the City of National City, California, on August 1, 2017 by the following vote, to -wit: Ayes: Commissioners Cano, Mendivil, Morrison, Rios, Sotelo-Solis. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Chairman, Housing Authority LESLIE DEESE Secretary, Housing Authority By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2017-56 of the Community Development Commission -Housing Authority of the City of National City, California, passed and adopted on August 1, 2017. Secretary, Housing Authority By: Deputy