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HomeMy WebLinkAboutDeed 1990-06-26 (Marin County Housing Financing Authority) (2)A k 0 ' \ WELLS FARGO BANK Consumer Credit Group 1333 Broadway, Suite 300 Oakland, CA 94612 June-28, 1990 i Marin County Housing Development Financing Corp. (MCHDFC) 30 N. San Pedro Rd. #265 San Rafael, CA 94913 ATTN: Maurice Wolohan Gentlemen: RE: Bradley House Senior Housing Wells Fargo Bank, as beneficiary under the Deed of Trust dated April 9, 1980 and recorded April 18, 1980 as series 16397 in which Marin County Housing Development Financing Corporation is Trustor and American Securities Company is Trustee, consents to an additional encumbrance to facilitate improvements to the property. The specific encumbrance contemplated is an interim loan from the City of Tiburon to MCHDFC, which will be secured by a second Deed of Trust on the project, the proceeds of which will be used to develop three additional units of senior housing. Ski ncerely, Mary Roque Assistant Vice President MR:is HOUSING AUTHORITY OF THE COUNTY OF MARIN MEMORANDUM Data July 2, 1990 T Bob Kleinert, Town of Tiburon From Maurice Wolohan Bradley House Construction Loan- Subject In conjunction with the construction loan provided by the Town of Tiburon for Bradley House, attached please find the following executed documents for your records: 1) Original Promissory Note; 2) Security Agreement; 3) UCC-1 Financing Statement; 4) Letter of Consent to Further Encumbrance from Wells Fargo Bank. The recorded Deed of Trust will be forwarded to you as soon as it comes back from the Recorder's Office. ORIGINAL PROMISSORY NOTE SECURED BY DEED OF TRUST $300,000.00 Tiburon, California June 26 , 1990 FOR VALUE RECEIVED, Marin County Housing Development Financing Corporation, a California nonprofit corporation ("Borrower"), hereby promises to pay to the Town of Tiburon, California, a municipal corporation (the "Holder"), the principal amount of Three Hundred Thousand and No/100th Dollars ($300,000.00) (the "Loan"). No interest shall be charged on the outstanding principal balance of this Note. This Note shall mature and the principal balance hereof, subject to the Subsidy and/or Forgiveness Provision set forth below, shall be due and payable on the earlier of (i) April 2, 1991 , Uft unless that date is extended, or (ii) the date on which Borrower's permanent loan to repay all or a part of this Loan is closed and funded. Borrower shall have the right to extend the original nine (9) month term of this Note for two (2) three-month periods, provided that Holder receives from Borrower a fifteen (15) day written notice of request to do so prior to the then maturity date of this Note. Subsidy and/or Forgiveness Provision: (a) Borrower agrees to use its best efforts to obtain a permanent loan upon favorable terms and in an amount sufficient to repay this $300,000 Loan from Holder. Holder acknowledges, however, that the low-income rental units on the property securing this Loan will not generate sufficient income to meet the debt service requirements of a permanent loan in an amount to repay the full $300,000 Loan and to pay operating expenses (including a reasonable reserve fund) for the property securing this Loan. Therefore, Borrower agrees that no later than sixty (60) days prior to the maturity date of this Loan, Borrower shall provide Holder with the terms of Borrower's proposed permanent financing which shall include the following information: (i) the amount the proposed permanent lender offers to loan to Borrower based on the rental income generated by the property; and (ii) the amount of such additional income or operating subsidy from a source other than the property securing this Loan or the Borrower as may be required by the proposed permanent lender to debt service a permanent loan in an amount sufficient to repay the full $300,000 owed to the Holder and meet current operating expenses (including a reasonable reserve fund) for the property. (b) Within thirty (30) days of Holder's receipt of the above information from Borrower, Holder shall select one of the following alternative provisions: (1) Holder shall irrevocably lender to fund the operating subsidy in the proposed permanent lender; or commit to Borrower and the permanent the amount and on the terms required by 34b:Bradley.Not 1 (6/7/90) (2) Holder shall forgive the balance of this Note which is not repaid with the proceeds of Borrower's permanent loan; or (3) Holder shall perform and accept a combination of (1) and (2) above, as may be agreed upon by Borrower, Holder and the proposed permanent lender. (c) Holder hereby agrees that if a permanent lender does not approve of either alternative provisions (1) or (3) above, or if Holder does not select one of the alternatives above within 30 days of Holder's receipt of the information from Borrower pursuant to subparagraph (a) above, Holder shall have been deemed to have selected alternative (2) and Borrower shall be entitled to close its permanent loan, and any amounts due under this Note which have not been funded by Borrower's permanent loan and paid to Holder shall be forever forgiven by Holder. Payments on this Note shall be made at the principal office of the Town of Tiburon at 1155 Tiburon Boulevard, Tiburon, California 94920, or at such other place as the Holder hereof may inform the Borrower in writing, in lawful money of the United States. Privilege is reserved to pay the debt in whole or in part, on any day prior to maturity upon at least five (5) days prior written notice to the Holder. This Note is the Note referred to in that certain Construction Loan Agreement executed of even date herewith between Borrower and Holder. The advances on the Loan evidenced by this Note are to be used exclusively for the purposes set forth in the Construction Loan Agreement. This Note is secured by a Deed of Trust of even date herewith executed by Borrower on that certain real property located in the Town of Tiburon, County of Marin, State of California (referred to herein as the "Property") to First American Title Company of Marin, a California corporation, as Trustee, which Property is more particularly described in said Deed of Trust. This Note is further secured by the Security Agreement of even date herewith also relating to said Property. Upon the failure of the Borrower to perform or observe any term or provi- sion of this Note, or upon the occurrence of any event of default under the terms of the Deed of Trust or the Construction Loan Agreement, the Holder may exercise its rights or remedies hereunder or thereunder. The Borrower waives presentment for payment, demand, protest, and notices of dishonor and of protest; and all defenses and pleas on the ground of any extension or extensions of the time of payment or of any due date under this Note, in whole or in part, whether before or after maturity and with or without notice. The Borrower hereby agrees to pay court costs and expenses, which may be incurred by the Holder hereof, in the enforcement of this Note, the priority Deed of Trust in favor of the Holder on the Property securing this Note or any term or provision of either. This Note is executed and delivered in the State of California and shall be governed by the laws of the State of California. 34b:Bradley.Not 2 (5/8/90) In the event Borrower shall, directly or indirectly, without the prior written approval of Holder, voluntarily or involuntarily sell, assign, transfer, dispose of or further encumber, or agree to sell, assign, transfer, dispose of or further encumber all or any portion of or any interest in the Property, then, or at any time thereafter, Holder, at its option, may declare the entire indebtedness evidenced hereby immediately due and payable. Notwithstanding anything to the contrary in this Note, in the Deed of Trust or in any other instrument evidencing or securing the obligations of the undersigned under this Note, the Holder expressly agrees that there shall be no personal liability of the undersigned or its officers or directors under this Note, under the Deed of Trust and under any other instrument given to evidence or secure the obligations of the undersigned under this Note. The liability of the undersigned shall be strictly and absolutely limited to the property conveyed by the Deed of Trust and the rents, profits, issues, products and proceeds thereof. In the event a default shall occur under this Note or with respect to the indebtedness evidenced by this Note, the Holder shall not seek any judgment for a deficiency against the undersigned or the officers, directors, legal representatives, successors or assigns of the undersigned, in any action to foreclose, to exercise a power of sale, to confirm any fore- closure or sale under power of sale, or to exercise any other rights or powers under or by reason of the Deed of Trust or any other instrument evidencing or securing the obligations of the undersigned under this Note. This Promissory Note is executed as of the date first written above. MARIN COUNTY HOUSING DEVELOPMENT FINANCING CORPORATION, a California nonprofit corporation By : Richard M. Adams, President 34b:Bradley.Not 3 (4/24/90) SECURITY AGREEMENT This SECURITY AGREEMENT is made as of this 2044 day of Juhc 1990, by MARIN COUNTY HOUSING DEVELOPMENT FINANCING CORPORATION, a California nonprofit corporation (the "Debtor") in favor of the TOWN OF -TIBURON, CALIFORNIA, a municipal corporation (the "Lender"). AS SECURITY FOR: 1. The payment to Lender of: a. That certain Promissory Note containing a nonrecourse provision executed by Debtor in favor of Lender in the amount of $300,000.00, dated of even date herewith, and any and all extensions and/or renewals of said Note or any amounts owing thereon; and b. Any and all sums hereafter advanced and expenditures hereafter made (in addition to any advancements or expenditures necessarily made pursuant to the provisions of the next paragraph) by Lender to or for Debtor, and any and all indebtedness and obligations now or hereafter owing or due from Debtor to Lender. 2. The repayment of any and all sums and amounts that are necessarily advanced or expended by Lender for the maintenance or preservation of the property, or any part thereof, described in this Agreement; 3. The payment and performance of each and every of the obligations and promises of Debtor contained in or secured by this Agreement. DEBTOR HEREBY AGREES AS FOLLOWS: SECTION 1.00: GRANT OF SECURITY INTEREST 1.01 GRANT OF SECURITY INTEREST; DESCRIPTION OF COLLATERAL. Debtor hereby grants, transfers and assigns to Lender a security interest, pursuant to the California Uniform Commercial Code, in the following property now owned or hereafter acquired (collectively referred to as the "Collateral"): a. All accounts, accounts receivable, contract rights, documents, instruments, rights to payment of every kind, and general intangibles (together with all products and proceeds thereof) relating to the Premises (as used herein "Premises" refers to that real property described in Exhibit A attached hereto; b. All compensation, awards, damages, rights of action and pro- ceeds, including the proceeds of any policies of insurance, arising out of or relating to a taking or damaging of the Premises by reason of any public or private proceeding, or fire, earthquake or other casualty; 34b:SecAgr.Tib 1 (6/22/90) c. Return premiums or other payments upon any insurance provided for the benefit of Lender, and refunds or rebates of taxes or assessments on the Premises; d. The right, title and interest of Debtor in all residential leases or rental agreements now or hereafter affecting the Premises including, without limitation, all rents, issues and profits therefrom; e. Plans, specifications, contracts and agreements for the construction of any improvements on the Premises; Debtor's rights under any payment, performance or other bonds in connection with the construction of improvements on the Premises; all construction materials, supplies and equipment delivered to the Premises or used or to be used in connection with the construction of improvements on the Premises; f. All furniture, furnishings, fixtures, appliances, machinery and equipment leases relating to the Premises; and g. All other items of Debtor's personal property of every kind and description to be located in or upon the improvements to be constructed on the Premises and with any and all replacements, substitutions, proceeds and products of the foregoing. 1.01 DELIVERY OF FINANCING STATEMENT. Debtor shall execute and deliver to Lender financing statements satisfactory in form and substance to Lender, and execute and deliver to Lender any other document reasonably requested by Lender to perfect or assign the security interest herein granted. SECTION 2.00: REPRESENTATIONS AND WARRANTIES Debtor represents and warrants as follows: 2.01 TITLE; OTHER LIENS. The Collateral is free and clear of all liens, encumbrances, claims and security interests of every kind except for the security interest held by Wells Fargo Bank and the security interest created by this Agreement. Title to all Collateral is vested in Debtor and such title is free of all claims and defenses. Debtor shall not sell, lease, dispose or further encumber the Collateral without the written consent of Lender. SECTION 3.00: COVENANTS Debtor hereby covenants and agrees as follows: 3.01 PERFORMANCE. Debtor shall fully and punctually perform all its obliga- tions under any contract, sale, or undertaking which gives rise to any right to payment with respect to the Collateral. 3.02 CONDITION OF COLLATERAL. Debtor shall maintain, preserve and protect the Collateral and if damaged or destroyed, replace the same by other property of equal value, and shall not permit waste thereof, and shall not remove or permit the removal of the Collateral from the Premises, and shall maintain such insurance as Lender may reasonably request. 34b:SecAgr.Tib 2 (6/22/90) 3.03 TAXES. Debtor shall pay at least ten (10) days before delinquency any tax, assessment, or governmental charge which may become a lien upon the Collateral. 3.04 ACCOUNTING; INSPECTION. Debtor shall permit Lender to inspect Debtor's books and records relating to the Collateral at any reasonable time. Debtor shall maintain full and accurate books and records. 3.05 SALE OR DISPOSITION OF COLLATERAL. Debtor will not voluntarily or involuntarily sell, transfer or otherwise dispose of any item of Collateral without the prior written consent of Lender. SECTION 4.00: DEFAULT; REMEDIES 4.01 EVENTS OF DEFAULT. Time is of the essence in this Agreement and any of the following shall constitute an event of default: a. Any failure to pay when due any payment of principal or other obligation to pay money under the Construction Loan Agreement, Note or Deed of Trust; b. Any failure to fully and punctually perform, or any breach of, any covenant, promise, warranty or obligation under the Construction Loan Agreement, the Note, Deed of Trust or any document executed in connection therewith; c. Any seizure of, levy upon or attachment of any material part of the Collateral; or d. Lender shall reasonably deem itself insecure. 4.02 REMEDIES. On the occurrence of an event of default, Lender shall have all remedies of a secured creditor under the California Uniform Commercial Code and as otherwise provided by law and, without limiting the generality of the foregoing, shall be entitled to the following: a. The entire amount of the indebtedness secured hereby shall, at the election of Lender, become immediately due and payable; b. Debtor agrees to put Lender in possession of the Collateral upon demand; and c. If this Agreement or any obligation secured hereby is referred to an attorney for collection, Debtor shall pay to Lender all costs of collecti"on (including reasonable attorneys' fees, expenses of title search and all court costs) incurred thereby and such sums are also secured hereby; SECTION 5.00: MISCELLANEOUS 5.01 CONTROLLING LAW; ASSIGNMENTS. This Agreement shall be governed by the laws of the State of California. All rights of Lender extend to its successors 34b:SecAgr.Tib 3 (6/22/90) and assigns and to the holder of any note evidencing the indebtedness hereby secured. Obligations of Debtor extend to and are binding upon Debtor's successors and assigns. 5.02 NOTICES. Any notice or other communication pursuant to this Agreement or required by any statute shall be addressed as follows: To Debtor: Marin County Housing Development Financing Corporation c/o Marin Housing Authority 30 N. San Pedro Road P.O. Box 4282 San Rafael, California 94913 Attention: Executive Director To Lender: Town of Tiburon 1155 Tiburon Boulevard Tiburon, California 94920 Attention: Town Manager 5.03 STATUTE OF LIMITATIONS. The right to plead any and all statutes of limitations as a defense to any demand secured by this Agreement is hereby waived to the full extent and longest period allowed by law. 5.04 THE PREMISES. As used herein, the "Premises" refers to all that real property described in Exhibit A, attached and incorporated herein. EXECUTED as of the day first written above. DEBTOR: MARIN COUNTY HOUSING DEVELOPMENT FINANCING CORPORATION, a California nonprofit corporation By: Richard M. Adams President 34b:SecAgr.Tib 4 (6/22/90) EXHIBIT "A" DESCRIPTION All that certain real oroperty situate in the City of Tiburon, County of Marin, State of California, described as follows: PARCEL ONE: All that oortion of the Rancho Corte Madera del Presidio, as finally confirmed to the 'Heirs of John Reed, by United States Patznt, situate, lying and being more particularly described as follows: BEGINNING at a post on the West line of an unnamed Avenue, which post is distant South 48° 42' West 2.95 feet from a stone monumnet, and which stone monument is distant North 28° 56' West 801.4 feet from the station cost set to mark the beginning of course No. 321 of the final and official survey of said Rancho Corte Madera del Presidio, said last mentioned station oust being marked "S 447", running thence from said point of beginning as above located and described, South 5 East 250 feet along said West line of said unnamed Avenue to~~an iron spike driven in the Northerly line of an Avenue or street ;mown as Mar West thence along said Northerly line, South 54 03 eves,. OD feet to an iron spike, North 500 49' West 200 feet to an iron spike, North 67 West 10 feet to an iron spike, thence leaving said Northerly line of said Avenue or Street, and running North 35° 16' East, 182.6 feet to an iron spice and thence North 85 East 90 feet; to the ooint of beginning. PARCEL TWO: BEGINNING at a post on the West line of an unnamed Avenue, which post is distant South 48° 42' West 2.95 feet from a stone monument, and which stone monument is distant North 28° 56' West 801.4 feet from the station post set to mark the beginning of course No. 321 of the final and official survey of said Rancho Corte Madera del Presidio, said last mentioned station oost being marked "S 447", running thence from said point of beginning as above located and described above... Northeast 5 feet, thence Southwest 92 feet to the Northeasterly line of that certain parcel as described in the deed from Benjamin F. Lyford et ux, to J. B. Sealy, recorded January 5, 1901 in Book 64 of Deeds at page 269, :Karin County Records, running thence Southeast 7 feet to the most Easterly corner of said Sealy parcel, said point also being the Northwesterly corner of that certain parcel as described in the deed from Benjamin F. Lyford et ux, to Trustees of the Tiburon School District of `Zarin County, State of California, recorded November 12, 1900 in Book 65 of Deeds at page 32, Marin County Records; running thence Northeasterly along said Northerly line 90 feet to the point of beginning. This FINANCING STATEMENT is resented for filing pursuant to the California Uniform Commercial Code. 1. DEBTOR (LAST NAME FIRST-4F AN INDIVIDUAL) 1A. SOCIAL SECURITY OR FEDERAL TAX NO. Marin County Housing Development Financing Corporation 94-2652764 18. MAILING ADDRESS c/o Marin Housing Authority P.O. Box 4282 1C. CITY. STATE San Rafael, California ID. Zip CODE 194913 2. ADDITIONAL DEBTOR (IF ANY) (LAST NAME FIRST---IF AN INDIVIDUAL) 2A. SOCIAL SECURITY OR FEDERAL TAX NO. 2B. MAILING ADDRESS 2C. CITY, BTATE 2D. zip CODE r.co 4-M a I rcwue MAMES OR STYLES (IF ANY) 3A. FEDERAL.TAX NUMBER 4. SECURED PARTY NINE! 4A. SOCIAL SECURITY NO.. FEDERAL TAX NO. OR BANK TRANSIT AND A.S.A. NO. NAME Town of Tiburon MAILING ADDRESS 1155 Tiburon Blvd. CITY Tiburon STATE California 94920 SIP CODE 5. ASSIGNEE OF SECURED PARTY (IF ANY) 5A. SOCIAL SECURITY NO.. FEDERAL TAX NO. OR BANK TRANSIT AND A.B.A. NO. NAME MAILING ADDRESS CITY STATE ZIP CODE e. This FINANCING STATEMENT covers the following types or items of property (include description of real property on which located and owner of record when required by instruction 4). See Exhibit "A" attached hereto and incorporated by this reference herein. © 7. CHECK 1 7s. DEBTOR (9) SIGNATURE NOT REQUIRED IN ACCORDANCE WITH 7A. PRODUCTS OF COLLATERAL INSTRUCTION s (a) ITEM: IF APPLICABLE 1 ARE ALSO COVERED a (1 a (2) F](3) (4) t 8. CHECK „ 1 IF APPLICABLE 1 DEBTOR IB A "TRANSMITTING UTILITY" IN ACCORDANCE WITH UCC 1 9105 (1) (R) I ( 9. Dwrt~ C 10. THIS SPACE FOR USE OF FILING OFFICER ANDTFILING OFFICER) MBER SIGNATURE(S) OF OEBTORC L, m 26 , 19 9 0 E Marin County Housing Development Financing Corp. 1 TYPE OR PRINT NAME(S) OF DEBTOR(S) 2 11111- 3 SIGNATURE (S) OF SECURED PARTY(IES) 4 5 TYPE OR PRINT NAME S OF SECURED PARTY E 6 11. Return copy to: 7 [IIAME ADDRESS F-Law office of Joyce Hiyama Glatt CITY 946 San Benito Road e Berkeley, California 94707-2437 STATE 0 ZIP CODE L (1) FILING OFFICER CO" FORM UCC-1 - FILING FEE 65.00 Approried by the Socr.tary or Stowe: Attachment to UCC-1 Debtor: Marin County Housing Development Financing Corporation Page 1 of 2 EXHIBIT "A" TO UCC-1 DESCRIPTION OF COLLATERAL All accounts, accounts receivable, contract rights, documents, instruments, rights to payment of every kind, and general intangibles (together with all products and proceeds thereof) relating to the Premises described below; All compensation, awards, damages, rights of action and proceeds, including the proceeds of any policies of insurance, arising out of or relating to a taking or damaging of the Premises by reason of any public or private proceeding, or fire, earthquake or other casualty; Return premiums or other payments upon any insurance provided for the benefit of Lender, and refunds or rebates of taxes or assessments on the Premises; The right, title and interest of Debtor in all residential leases or rental agreements now or hereafter affecting the Premises including, without limitation, all rents, issues and profits therefrom; Plans, specifications, contracts and agreements for the construction of any improvements on the Premises; Debtor's rights under any payment, performance or other bonds in connection with the construction of improvements on the Premises; all construction materials, supplies and equipment delivered to the Premises or used or to be used in connection with the construction of improve- ments on the Premises; All furniture, furnishings, fixtures, appliances, machinery and equipment leases relating to the Premises; and All other items of Debtor's personal property of every kind and description to be located in or upon the improvements to be constructed on the Premises and with any and all replacements, substitutions, proceeds and products of the foregoing. The Premises referred to above is described as follows: All that real property located in the Town of Tiburon, County of Marin, State of California, and described as follows: 3:._ a= portior_ of Cale R.= nco Cora Madara del P_esiar.o, as to the :airs of lol=i zed, b7 Ua~=ed Stat:es ?atz~~, si~~atz, lying, a- .?-.d bei:zg =ra part-_;c,,1 arl1,r dzsc_ibea as ' O , OWS Attachment to UCC-1 Debtor: Marin County Housing Development Financing Corporation Page 2 of 2 3 G 1M 'I'N G at a pos t or..hz Wes ` line of an urma=ad ,venue, which oos u zs dis to .t Scut', 48 ° 42' West 2..95 feet =rocs a stone * 0,=,., ent, and wnica stona yonutent is distant North 28 ° 561 West 80.1.4 feet Boa the stat .on post set to mark the beginning of Course 'No. 321 of the f:.-:a, and. of :.cial survey of said Rancho Corte Madera del P_ esidio, said last meat+ored station, post being ~azkad "S 447" running t :ence from said point of begi.aning as above located and described, South 5° East 250 feet along said West 14"a of said unnayraxed Avenue to an `non spike driven in the Northerly line of an Avenue or street :mown as "Mar West" thence al omp said :Yore e,-1y ?ire, South 54° .03' West 65 feet to an Iron snake, North 50° 49' West 200 feet to an icon spike, Nor th 67 ° West 10 eet to an axon spike, thence leaving said Northerly 1* e of said Avenue or St+eet, and running Norte 35 ° 16' Fast, 182. o feet to aN ixon spike and thence Nort 85 ° East 90 feet, to the point of beginning. P?.RCrL 71'N'Q 33G?NUM-M at a post on tae West line of an unnamed Avenue, which post is '-..taut South 48 ° 42' West 2.95 feet from a stone 'monu- ment, and stona. mc-aument is distant North 28° 56' West 801.4. feet from the station post set to mark the beof -do=se-,7;o. 321 of the final and official survey o= sale. ?.z=ho Corrz Madera del P es=dio, said last mentioned scat or post berg marked "S 447f1, _ - zing thenca from said ,ooi n. t of bea,=ing as above locatad and described above, Vor theist, 5 -feet, t:-ence Southwest 92 feet to the Northeastezly I.; -me of that cer taro parcel as described' in the deed from 3anj amain P. Ly:ord at ux, to J. B. Seely, recorded January 5, -1.901 im Book 64 of Deeds at page 269, uarin County Records, running thence Southeast 7 feet to the most Easterly corner of said Seely parcel, said point also being the Northwestarl.y corner of that certain parcel as described in the deed from Benjam n F. Lyford, at ux, to Tr :stees o= the Tiburon School, District of Maria Cour+t7, State of Cal, ornia, recorded over 12, ? 900 in Book 85 of Deeds at page 82, Mari= County Records; runming thence= Nar-:~easterly a, ona said Northerly .::e 90 Tzet to the point of bev:n.,.~no. Enl,. 177 "1st