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Home My WebLink Aboutresolution.council.028-02 RESOLUTION NO. (SERIES OF 2002) A RESOLUTION OF THE CITY COUNCIL OF ASPEN; COLO~DO, APPROVING A FIRST AMENDMENT TO DEED OF TRUST, AND SUBORDINATION AGREEMENT BETWEEN THE CITY OF ASPEN AND TRUSCOTT PHASE II, LLLP, AND AUTHORIZING THE CITY MANAGER TO EXECUTE S~ID AMENDMENT AND AGREEMENT ON BEHALF OF THE CITY OF ASPEN. WHEREAS, there has been sUbmitted to the City Council an Amendment to the Deed of Trust and Subordination Agreement between the City of Aspen, Colorado and Truscott Phase II, LLLP, a copy of which is annexed hereto and part thereof. NOW, THEREFORE, BE IT RESOLVED BY THE CiTY COUNCiL OF THE CiTY OF ASPEN, COLORADO. Section One That the City Council of the City of Aspen hereby approves that an Amendment to the Deed of Trust and Subordination Agreement between the City of AsPen, Colorado, and Truscott Phase II, LLLP, regarding tl~e Truscott affordable housing redevelopment, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said Amendment to the Deed of Trust and Subordination Agreement on behalf of the City of Aspen. Dated: ~ ~,~ ,2002. H~elen I~lin'~l~n~er~X~, Mayor I, Kathryn Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolutign)dopted by the City Council of the City of Aspen, Colorado, at a meeting held ~ ~,~'~ ,20021 .~" At. lerk ca~.~i.i, . ,,,,, Page: 03/28/2002 0g :09g SILVIA DAVIS PITKIN COUNTY CO R 5.00 D RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: WELLS FARGO E~ANK, NATIONAL ASSOCIATION Rea~ Estate Group (AU #07490] 999 Third Avenue, 28th Floor o3/28/2ee2 09: 13~' $ILVZ¢ D~VZS PZTKZN COUNTY CO R 25.0e O 0.0e Attn: Wendy Woolery ~- _.. _ Loan No. 4631PO ~' SUBORDINATION AGREEMENT (Deed of Trust to Deed of Trust) NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR SECURITY INTEREST IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT. THIS SUBORDINATION AGREEMENT ("Agreement") is made March 25, 2002, by Truscott Phase II LLLP, a Colorado limited liability limited partnership, owner of the rea[ property hereinafter de, Scribed ("Owner") and City of Aspen, Colorado, a municipal corporation, holder of the deed of trust described below ("Beneficiary"), in favor of WELLS FARGO BANK, NATIONAL ASSOCIATION ("Lender"). RECITALS A. Subject to the terms and ~)rovisions of that certain deed of trust dated September 6, 2001, executed by Owner in favor of E~eneficiary, recorded September 14, 2001 in the official records of Pitkin County, Colorado as Instrument No, 458648, Owner granted to Beneficiary a security interest in and to the property described on Exhibit A attached hereto (which property, together with all improvements now or hereafter located on the property, is hereinafter referred to as the "Property"). B. Owner has executed, or proposes to execute, a deed of trust with absolute assignment of leases and rents, security agreement and fixture filing ("Lender's Deed of Trust") securing, among other things, a promissory note ("Note") in the principal sum of Six Million Two Hundred Thousand and 00/lO0ths ($6,200,000.00), dated March 25, 2002, in favor of Lender ("Loan"). Lender's Deed of Trust is to be recorded concurrently herewith. C. As a condition to Lender making the Loan secured by Lender's Deed of Trust, Lender requires that Lender's Deed of Trust be unconditionally and at all times remain a lien or charge upon the Property, prior and superior to all the rights of Beneficiary under its deed of trust and that Beneficiary specifically and unconditionally subordinate its deed of trust to the lien or charge of Lender's Deed of Trust. D. Beneficiary and Owner agree to the subordination in favor of Lender. Truscott Phase Ii LLLP Page 1 LOAN NO. 4631PO SUBAGDT. CO M (07/97) 867-0-24-ZT(ECK THEREFORE, for valuable consideration and to induce Lender to make the Loan, Owner and Beneficiary hereby agree for the benefit of Lender as follows: 1. Lender's Deed of Trust securing the Note in favor of Lender, and any modifications, renewals or extensions thereof, shall unconditionally be and at all times remain a lien or charge on the Property prior and superior to Beneficiary's deed of t~ust; and 2. This Agreement shall be the whole agreement with regard to the subordination of Beneficiary's deed of trust to the lien or charge of Lender's Deed of Trust and shall supersede and cancel, but only insofar as would affect the priority of Lender's Deed of Trust, any prior agreements as to such subordination, including, without limitation, those provisions, if any, contained in Beneficiary's deed of trust which provide for the subordination of the deed of trust to a deed or deeds of trust or to a mortgage or mortgages. Beneficiary further declares, agrees and acknowledges for the benefit of Lender, that: 3. Lender, in making disbursements pursuant to any such agreement, is under no obligation or duty to, nor has Lender represented that it will, see to the application of such proceeds by the person or persons to whom Lender 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; and 4, Beneficiary intentionally and unconditionally subordinates all of Beneficiary's right, title and interest in and to the Property to the lien or charge of Lender's Deed of Trust upon the Property and understands that in reliance upon, and in consideration of, this subordination, specific loans and advances are being and will be made by Lender ant, as par~ 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, This Agreement may be executed ~ two or more counterparts, each of which shall be deemed an original and all of which together shall constitute an¢ be construed as one and the same instrument I~xhibit A is attached hereto and incorporated herein by this reference, Truscott Phase II LLLP Page 2 LOAN NO. 4631PO SUBAGDT.CO M (07/97) 867-0-24-ZTIECK NOTICE: THIS SUBORDINATION AGREEMENT CONTAINS A PROVISION WHICH ALLOWS THE PERSON OBLIGATED ON YOUR REAL PROPERTY SECURITY TO OBTAIN A LOAN A PORTION OF WHICH MAY BE EXPENDED FOR OTHER PURPOSES THAN IMPROVEMENT OF THE LAND. IT IS RECOMMENDED THAT. PRIOR TO THE EXECUTION OF THIS AGREEMENT THE PARTIES CONSULT WITH THEIR ATTORNEYS WITH RESPECT HERETO, "OWNER" Truscott Phase Ii LLLP, a Colorado limited [iabi]itv limited partnership BY: Aspen/Pitkin County Housing Authority, General.~artner /1 .. /3 Cindy I~/~hrlste~aen nterim Executive Director "BENEFICIARY" City of Aspen, Colorads, a municipal corporation e3/28/2ee2 sa: 13~ 25.es D e.ee Truscott Phase II LLLP Page 3 LOAN NO. 463~PO SUBAGDT.CO M (07/97) 867-0-24-ZTIECK EXHIBIT A DESCRIPTION OF PROPERTY Exhibit A to Subordination Agreement executed oy Truscott Phase Il LLLP, a Colorado limited liability limited partnership, as "Owner", and City of Aspen, Colorado, a mumc~2a~ corporation, as "Beneficiary", n favor of WELLS FARGO BANK, NATIONAL ASSOCIATION "Lender", dated as of March 25, 2002 All the certain real property located in the County of Pitkin, State Of Colorado, described as follows: Lot 3, THE ASPEN GOLF COURSE SUBDIVISION, according to the Plats thereof recorded June 20, 1985 n Plat Book 1 7 at Page 34- as Reception No. 269092 and as Amended by Plat recorded May 19, 1994 in Plat Book 34 at Page 51 as Reception No. 370200 and Amended by Plat recorded April 29, 1998 in Plat Book 44 at Page 84 as Reception No. 416226, and Third Amended Plat of the Aspen Golf Course Subdivision recorded February 23. 2001 in Plat Book 56 at Page 72 as Receotion No. 451795, TOGETHER WITH the right to use Lot 5, THE ASPEN GOLF COURSE SUBDIVISION IPARKING AREA', recorded February 23, 2001 in Plat Book 56 at Page 72 as Reception No. 451795. County of Pitkin, State of Colorado Truscott Phase II LLLP Page 4 LOAN NO. 4631 PO SUBAGDT.CO M (07197) 867-0-24-ZTIECK STATE OF COLORADO SS. COUNTY OF The foregoing ins~trument was acknowledged before me this~Y~-~day of ~ ,....~,, by W,~S ~ h~ official seal STATE OF COLORADO SS. \ , cou.TY oF lng instrument was acknowledged befo~'l~'~:~:~l::lay of (~[/L~-~ ~- ~ .~=~by The fore~ capacity as ~ ~[~ ~.~:L..Ch~ ' her/his ~ ~T~ ~an~and official seal Notar~ub ic Truscott Phase II LLLP Page 5 LOAN NO. 4631PO SUBAGDT. CO M (07/97) 867-0-24~ZTIECK 03/28/'7002 09: 15P BILVIA DAVIS PITKIN COUNTY CO R '70.00 D 0.00 FIRST AMENDMENT TO DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT This First Amendment to Deed of Trust, Assignment of Leases and Rents and Security Agreement is made as of the day of March, 2002 by and between Truscott Phase H, LLLP, a Colorado limited liability limited partnership, as "Grantor" and City of Aspen, Colorado, a municipal corporation, as "Beneficiary". RECITALS A. On September 6, 2001, Grantor executed in favor of Beneficiary that certain (i) Promissory Note in the amount $2,900,000 (the "Note") and (ii) Deed of Trust, Assignment of Leases and Rents and Security Agreement, which was recorded in the Clerk and Recorders Office of Pitldn County, Colorado on September 14, 2001 as Reception No. 458548 (the "Deed of Trust"), covering the premises located in Aspen, Pitkin County, Colorado and more particularly defined and described in the Deed of Trust (the "Premises"). The Note and Deed of Trust hereinafter are collectively referred to as the "City Loan Documents". B. Grantor and Beneficiary desire to amend ceridn terms and conditions contained in the Deed of Trust. C. Capitalized terms used and not otherwise defined herein shall have the respective meanings set forth in the First Amended and Restated Limited Agreement of Parmership of Grantor (the "Partnership Agreement"). NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, the parties hereby agree that notwithstanding any contrary provisions in the Deed of Trust: 1. Beneficiary hereby acknowledges the sale of the entire limited partnership interest in Grantor to Lend Lease Truscott Housing Phase II, LLC, a Delaware limited liability corporation, and SLP, Inc., a Massachusetts corporation, (collectively, the "Limited Partners"), and the admission of the Limited Partners to Grantor as the sole limited partners subject to the terms and provisions oftha Partnership Agreement for consideration paid to Grantor by the Limited Partners as set forth in the Partnership Agreement. Beneficiary hereby further consents (i) to the substitution as limited partner in Grantor of any affiliate of the Limited Partners to whom the Limited Partners' interest may be assigned in the future, provided that such assignee assumes any obligations that the Limited Partners may have to the undersigned under the City Loan Documents and (ii) to the transfer ora membership interest in the Investor Limited Partner to any person, provided that in each case the transferee shall be of at least the same creditworthiness of the transferring Limited Partner. Beneficiary further consents to the substitution as general partner in Grantor of any affiliate of the Limited Partners. Beneficiary hereby waives any default or event of default under any of the City Loan Documents created or caused by any of the foregoing. 2. Beneficiary agrees to give the Limited Partners prompt written notice of any default by Granter under the Note or the Deed of Trust.. Beneficiary will not accelerate the Note nor exercise any remedies available to Beneficiary upon the occurrence of an event of default under either the Note orthe Deed of Trust, including, but not limited to, instituting any foreclosure action with respect to the Premises or accepting from Grantor a deed in lieu of foreclosure, provided that the Limited Partners cure any monetary default within thirty (30) days after receipt by the Limited Parmers of the aforesaid notice or commence to cure any non-monetary default promptly upon receipt by the Limited Partners of such BOS 1 Amendment to City Deed of Trust,LendLease.3.6.021.DOC 1 notice and complete such cure within a reasonable time thereafter, and further provided that the Limited Partners shall furnish Beneficiary with periodic information regarding their efforts to cure any non-monetary defaults. 3. Copies of any notices to Grantor, pursuant to Section 8.11 of the Deed of Trust, shall be provided to the Limited Parmers c/o Lend Lease, 101 Arch Street, Boston, MA 02110, Attention: Investor Services Department. 4. The Premises is expected to generate low-income housing tax credits and will be subject to the provisions of a Regulatory Agreement to be entered into between Grantor and the Colorado Housing and Finance Authority in its capacity as tax credit issuing authority (the "Extended Use Agreement"), which constitutes the extended low-income housing commitment described in Section 42(h)(6)(B) of the Internal Revenue Code, as amended (the "Code"). In consideration of the foregoing, Beneficiary agrees as follows: Beneficiary agrees to and does hereby subordinate the Note and Beneficiary's rights under the Deed of Trust and hereby subjects the Loan and Beneficiary's fights under the Deed of Trust, to the provisions of the Extended Use Agreement, but only to the extent set forth in Section 42(h)(6)(E) of the Code. Notwithstanding the foregoing, the parties acknowledge that the Extended Use Agreement will terminate on the date the Premises is acquired by foreclosure (or instrument in lieu of foreclosure), provided that notwithstanding such termination, for a period of three years thereafter no tenant may be evicted from any low income unit without good cause, nor may the gross rent for any such unit be increased, as more fully provided in Section 420a)(6)(E) of the Code. The parties hereto understand and agree that, notwithstanding any provisions contained in this Agreement, the Extended Use Agreement, or any other instrument or agreement affecting the Premises, the restrictions and covenants of the Extended Use Agreement are not intended either to c~eate a lien upon the Premises, or grant any fight of foreclosure, under the laws of the State of Colorado, to any party to the Extended Use Agreement or third party beneficiary thereof upon a default of any provision therein; rather they are intended to constitute a restrictive covenant to which any instrument or agreement granting a security interest in the Premises must be subject, but only to the extent required by said Extended Use Agreement. IN WITNESS WHEREOF, the parties have executed this First Amendment to Deed of Trust, Assignment of Leases and Rents and Security Agreement as of the day and date first written above [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] Page: 2 of 4 03/28/2002 og:IsP BOS 1 Amendment to City Deed of Trust. LendLease.3.6.021.DOC 2 GRANTOR: TRUSCOTT PHASE II, LLLP, a Colorado limited liability limited partnership, by its General Partner, AspenfPitldn County Housing Authority Title: BENEFICIARY: CITY OF ASPEN, COLORADO, a municipal corporation Name: Title: STATE OF COLORADO ' ~_~'~' '-": . _; - --'_. -. _ fAspen/Pitkin County Housing Authordy, t~e General Partner of l~o~ary Public I Xycomm'sslo expi=: 41 BOS 1 Amendment to City Deed of Trust. LendLea~e.3.6.021.DOC 3 Page: 4 of 4 03/28/2002 09: 15¢ COUNTY cO R 20.00 O 0.00 Dee6 BOS 1 .~endl~e~[ to City