HomeMy WebLinkAboutC2011-250 - 5/10/2011 - NA13 ci, c. 2 C - 0 I I A 17 7 6
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU
MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS
INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR
SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER.
THIRD LIEN LEASEHOLD DEED OF TRUST
Date: ollu IV ' 2011
Grantor: Costa Tarragona II, Ltd., a Texas limited partnership
Grantor's Mailing Address:
1201 Leopard Street
Corpus Christi, Texas 75401
Attn: General Manager
Trustee: Carlos Valdez
Trustee's Mailing Address:
City of Corpus Christi
P. 0. Box 9277
Corpus Christi, TX 75469 -9277
Beneficiary: Corpus Christi Community Improvement Corporation, a Texas nonprofit
corporation
Beneficiary's Mailing Address:
P. O. Box 9277
Corpus Christi, TX 78469 -9277
Note:
Date: Of even date
Amount: Seven Hundred Seventy -seven Thousand Nine Hundred Sixty -four
Dollars ($777,964.00) (hereinafter referred to as "the Note ")
Maker: Costa Tarragona II, Ltd., a Texas limited partnership
Payee: Corpus Christi Community Improvement Corporation, a Texas
nonprofit corporation
Final Maturity Date: June 1, 2054
2011 -250
05/10/11
Costa Tarragona II
Deed of Trust
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INDEXED
Terms of Payment: As provided in the Note.
Property (including any improvements):
The property described on Exhibit A attached.
Prior Liens:
Multifamily Construction And Permanent Leasehold Deed Of Trust, Assignment Of Rents And
Security Agreement And Fixture Filing of even date in favor of Sterling Bank, a Texas state
banking association
Subordinate Leasehold Deed of Trust with Security Agreement and Assignment of Rents of even
date in favor of Texas Department of Housing and Community Affairs, a public and official
agency of the State of Texas
Each of such prior Iien instruments shall be recorded in the Official Public Records in Nueces
County, Texas (the "Prior Liens ").
Other Exceptions to Conveyance and Warranty:
Tax LLTRA, easements, rights -of -way, and prescriptive rights, whether of record or not, and all
presently recorded instruments, that affect the Property (together with the Prior Liens shall
collectively referred to herein as the "Permitted Exceptions ").
FOR VALUE RECEIVED AND TO SECURE PAYMENT OF THE NOTE, GRANTOR
HEREBY IRREVOCABLY GRANTS, BARGAINS, SELLS, CONVEYS, TRANSFERS
AND ASSIGNS THE PROPERTY TO TRUSTEE, HIS SUCCESSORS AND ASSIGNS,
IN TRUST, WITH POWER OF SALE. TO HAVE AND TO HOLD the Property, together
with the rights, privileges and appurtenances thereto belonging unto Trustee and his substitutes
or successors, forever, subject to Permitted Exceptions, and Grantor hereby binds itself and its
heirs, executors, administrators, personal representatives, successors and assigns to warrant and
forever defend the Property unto Trustee, his substitutes or successors and assigns, against the
claim or claims of all persons claiming or to claim the same or any part thereof subject to
Permitted Exceptions.
Grantor warrants that it has good and marketable title to the Property and has full power and
lawful authority to grant, bargain, sell, convey, assign, transfer and mortgage its interest in the
Property in the manner and form hereby done or intended. Grantor will preserve its interest in
and title to the Property and will forever warrant and defend the same to Trustee and
Beneficiary against any and all claims subject to Permitted Exception and will forever warrant
and defend the validity and priority of the lien and security interest created herein against the
claims of all persons and parties whomsoever. Further, the foregoing warranty of title shall
inure to the benefit of and be enforceable by Beneficiary in the event Beneficiary acquires title
to the Property pursuant to any foreclosure. If Grantor performs all the covenants and pays the
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Deed of Trust
Note according to its terms, this Deed of Trust shall have no further effect, and Beneficiary
shall release it at Grantor's expense.
GRANTOR'S OBLIGATIONS
Grantor agrees to:
1. Keep the Property in good repair and condition and in a safe, sanitary and decent
condition, in compliance with the City of Corpus Christi Building and Housing Codes
throughout the term of the Note wherein the Corpus Christi Community Improvement
Corporation is designated Payee.
2. Not convert any of the HOME assisted units to any form of condominium, cooperative
ownership, or other non - residential use.
3. Pay all taxes and assessments on the Property before past due and provide on an annual
basis to Beneficiary proof of such payment.
4. Pay before past due all claims and demands of mechanics, materialmen, laborers and
others for any and all work performed or materials delivered for the Property.
5. Preserve the lien's priority as it is established in this Deed of Trust.
6. Deliver to Beneficiary, within ten (10) business days from the date of execution hereof,
a Mortgagee's Title policy, issued by a title company authorized to do business in the
State of Texas, on the form promulgated by the Texas State Board of Insurance,
wherein the title to the Property is insured to be as indicated in the corresponding
Commitment for Title Insurance subject to Permitted Exceptions.
7. Maintain, at Grantor's sole expense, in a form reasonably acceptable to Beneficiary, an
insurance policy that is in strict accordance with the insurance requirements set forth in
Exhibit `B" attached hereto and made a part hereof for all purposes and comply with all
conditions stated in such exhibit.
8. Provide evidence to Beneficiary that all insurance required herein has been paid current
as of the date of such evidence being furnished to Beneficiary.
9. Keep any buildings occupied as required by the insurance policy.
10. Give Beneficiary prompt, written notice of the occurrence of any casualty affecting or
the institution of any proceedings for eminent domain or for the condemnation of the
Property, or any portion thereof.
11. Subject to the terms and conditions of the Prior Liens documents, assign to Beneficiary
all insurance proceeds on the Property, and all causes of action, claims, compensation,
awards or recoveries for any damage, condemnation or taking of all or any part of the
Property or for any damage or injury to it or for any loss or diminution in value of the
Property.
12. If this is not a first lien, pay all prior notes that Grantor is liable to pay and abide by all
prior lien instruments in accordance with their terms.
13. Permit Beneficiary to inspect, at all reasonable times deemed appropriate by
Beneficiary, the Property to determine if it is being maintained in accordance with local
Uniform Building Code and property maintenance and upkeep standards.
14. Ensure the performance of all obligations and the compliance at all times with each and
every term and condition of this Deed of Trust.
Deed of Trust
15. Ensure the performance of all obligations and the compliance at all times with each and
every term and condition of that certain "Real Estate Lien Note" (the "Note ") this date
executed by Maker in favor of Beneficiary.
16. Ensure the performance of all obligations and compliance at all times with each and
every term and condition of that certain "HOME Loan Agreement" (the "Loan
Agreement ") this date executed by Grantor.
17. Ensure the performance of all obligations and the compliance at all times with each and
every term and condition of that certain "Assignment of Leases and Rentals" (the
"Assignment ") this date executed by Grantor (this Deed of Trust, the Note, the Loan
Agreement, the Assignment and the Declaration referred to hereinafter as the "Loan
Documents ")
18. Not discriminate against any prospective tenant to the Property on the basis of the
prospective tenant's race, color, creed, sex, national origin, age, handicap, familial
status or on the basis of said tenant's receipt of, or eligibility for, housing assistance
under any federal, state or local housing assistance program or on the basis that the
prospective tenant has a minor child or children who will be living with him/her and
acknowledges that the project for which this Deed of Trust and the Note are given, is to
be constructed specifically as a housing development intended and authorized for "low
income" persons, as that term is defined in 24 CFR Part 812 and all other applicable
federal laws, regulations, and guidelines.
19. Remain liable for the following and for any loss, cost, expense, liability, obligation and
claim which may ever be suffered or incurred by Beneficiary on account of any of the
following:
a. The commission of any fraud, or the breach of any representation or warranty
contained in the Loan Documents or any document or instrument submitted in
connection with the Note hereby secured by or on behalf of Grantor;
b. Any default, beyond applicable notice and cure periods, by Grantor in their
respective obligations under any of the Loan Documents, to pay all taxes,
assessments and other charges imposed or assessed against the Property or any
personalty used in connection with the operation of the Property, or to keep the
Property and all such personalty insured as required by the Loan Documents
pertaining hereto;
C. Any waste of the Property or any damage to the Property caused by any
negligent or willful violation of any covenant or agreement contained in any of
the Loan Documents pertaining hereto regarding the maintenance, repair and
restoration of the Property or any damage to or deterioration in the Property
caused by any negligent or willful act or omission of Grantor or the employees,
agents, other representatives or contractors of Grantor;
d. The taking or allowing the taking of any action that may invalidate or diminish
any insurance carried on the Property;
e. The failure of Grantor to pay any indebtedness or obligation that results in the
filing or creation of a mechanic's, materialman's or judgment lien or other lien
against the Property or any part thereof, subject to Grantor's right to bond
around or contest same;
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Deed of Trust
f The failure of Grantor to properly apply, or ensure the application of, in
accordance with the Loan Documents, all insurance proceeds and condemnation
rewards received by Grantor with respect to the Property;
g. The failure of Grantor to return or deliver to Beneficiary any tangible personal
property (including leases, books, records and files relating to the leasing,
operation and maintenance of the Property) taken from the Property or kept
elsewhere by Grantor following any foreclosure of the Property;
h. The failure of Grantor to comply with any applicable governmental statutory or
other legal requirements or to ensure such compliance in connection with the
Project or to correct any defects in construction of the Property of which Grantor
has actual knowledge;
i. The failure of Grantor to deliver to Beneficiary all rents and profits collected or
received by Grantor after the occurrence of any of the following:
(i) The date on which Grantor notifies Beneficiary that Grantor intends to
abandon the Property or, in effect, to not comply fully with its
obligations under any of the Loan Documents;
(ii) The date on which the maturity of the Note is accelerated and/or there is
a judicial or non judicial foreclosure against the Property; or
(iii) Any default under any of the Loan Documents pertaining hereto
(whether or not Grantor receives notice thereof from Beneficiary)
regarding the construction, maintenance, repair, restoration or
rehabilitation of the Property;
j. Any and all of Beneficiary's costs, expenses, damages or liabilities, whether
incurred by Beneficiary prior to or following foreclosure of this Deed of Trust
and whether Beneficiary shall be in the status of a lienholder or an owner of the
Property following foreclosure (directly or indirectly) arising out of or
attributable to the use, generation, storage, release, threatened release, discharge,
disposal, or presence on, under, or about the Property of any hazardous
substance;
k. All reasonable attorneys' fees and other costs incurred by Beneficiary in order to
recover from Grantor or any guarantor any of the amounts for which Grantor
remains liable as provided herein;
1. All reasonable attorneys' fees and other costs incurred by Beneficiary in the
event all of the following occur: (i) Grantor defaults beyond applicable notice
and cure period, as applicable, under any of the Loan Documents (ii)
Beneficiary accelerates the maturity of the Note secured hereby and commences
judicial or non judicial foreclosure proceedings, and (iii) either before or after
the foreclosure sale, Grantor institutes litigation or files a petition or claim in
any judicial or administrative proceeding, including without limitation any
bankruptcy or similar proceeding or any action seeking any injunctive relief
against Beneficiary or Trustee, which contests Beneficiary's right of foreclosure
or the legality of any of the Loan Documents; and
M. It being understood that the liability provisions contained in this paragraph are
binding upon Grantor and his successors and assigns and shall inure to the
benefit of Beneficiary and any subsequent holder of the Note.
Deed of Trust
GRANTOR'S REPRESENTATIONS AND WARRANTIES
Grantor, on behalf of itself and its successors and assigns, hereby represents, warrants and
covenants the following:
1. No bankruptcy or insolvency proceedings are pending or to Grantor's knowledge,
contemplated by or against Grantor or by or against any endorser, cosigner, indemnitor
or guarantor of the Note secured hereby.
2. All reports, certificates, affidavits, statements and other data furnished by Grantor to
Beneficiary in connection with the loan evidenced by the Note secured hereby are true
and correct in all material respects and will continue to be true and correct throughout
the term of the Note or, if not so continuing to be true and correct in all material
respects, will promptly be made true and correct in all material respects by Grantor, and
Grantor has not omitted to state any fact or circumstance necessary to make the
statements contained therein not misleading.
3. The execution, delivery and performance of the Loan Documents have been duly
authorized by all necessary action to be binding and enforceable against Grantor in
accordance with the respective terms thereof and do not contravene, result in a breach
of or constitute a default under any contract or agreement of any nature to which
Grantor is a party or by which Grantor or any of its properties may be bound and do not
violate or contravene any law, order, decree, rule or regulation to which Grantor is
subject.
4. The Property and the intended use thereof by Grantor comply with all applicable
restrictive covenants, zoning ordinances, subdivision and building codes, flood disaster
laws, applicable health and environmental Iaws and regulations and all other
ordinances, orders or requirements issued by any state, federal or municipal authorities
having or claiming jurisdiction over the Property.
5. All utility services necessary and sufficient for the full use, occupancy, operation and
disposition of the Property for its intended purposes are available or will be available
when needed, including water, storm sewer, sanitary sewer, gas, electric, cable and
telephone facilities.
6. All streets, roads, highways, bridges and waterways necessary for access to and full use,
occupancy, operation and disposition of the Property have been, completed., have been
dedicated to the appropriate governmental authority, if applicable, and are open and
available, or will be available when needed to the Property without further condition or
cost to Grantor.
7. There are no judicial or administrative actions, suits or proceedings pending or
threatened against or affecting Grantor or the Property which, if adversely determined,
would impair either the Property or Grantor's ability to perform the covenants or
obligations required to be performed under this Deed of Trust or any of the Loan
Documents pertaining hereto.
8. The Property is free from any lien for water charges, sewer rents, taxes and
assessments.
9. As of the date of this Deed of Trust, the Property is free from unrepaired damage caused
by fire or other casualty.
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Deed of Trust
10. As of the date of this Deed of Trust, no part of the Property has been taken in
condemnation, eminent domain or like proceeding nor is any such proceeding pending.
WWCQ1/.1tIA - M
Beneficiary may exercise the following rights subject to the terms and conditions of the
Subordination Agreement between Beneficiary and prior lienholders:
1. Beneficiary may appoint in writing a substitute or successor trustee, succeeding to all
rights and responsibilities of Trustee.
2. If the proceeds of the Note secured hereby are used to pay any debt secured by prior
liens, Beneficiary is subrogated to all of the rights and liens of the holders of any debt so
paid.
3. Any proceeds payable under the insurance policy required to be obtained by this Deed of
Trust or any of the Loan Documents shall be payable to Beneficiary. Beneficiary may
apply such proceeds it receives either to reduce the Note secured hereby or to repair or
replace damaged or destroyed improvements covered by the policy. Notwithstanding the
foregoing, Beneficiary shall release insurance or condemnation proceeds to Grantor for
the purpose of repairing, replacing or restoring the lost, damaged or destroyed property of
the Project if (i) no Event of Default exists, (ii) Beneficiary reasonably determines that
the repair, replacement or restoration will be completed prior to the maturity date of the
Loan, and (iii) Beneficiary reasonably determines that the insurance proceeds together
with other available funds are sufficient to complete the repair, replacement or
restoration.
4. If Grantor fails to perform any of Grantor's obligations, Beneficiary may, at its option,
perform such obligations and be reimbursed by Grantor on demand at the place where the
Note secured hereby is payable for any sums so paid, including reasonable attorney's
fees, plus interest on those sums from the dates of payment at the rate stated in the Note
for matured, unpaid amounts. The sum to be reimbursed shall be secured by this Deed of
Trust.
5. If Grantor defaults beyond applicable notice and cure periods, fails to perform any of
Grantor's respective obligations, or fails to comply with any term or condition of the
Loan Documents or if default occurs on a prior lien note, and the default continues after
Beneficiary gives Grantor notice of the default and the time within which it must be
cured, if any, as may be required by law or by written agreement, then Beneficiary may:
a. Accelerate the maturity of the Note hereby secured and declare the entire unpaid
principal balance and applicable interest on the Note immediately due without the
necessity of any further action on the part of Beneficiary, and Grantor expressly
waives any requirement of notice of intent to accelerate, or of notice of such
acceleration of, the maturity of the Note hereby secured;
b. Request Trustee to foreclose this lien, in which case Beneficiary or Beneficiary's
agent shall give notice of the foreclosure sale as provided by the Texas Property
Code as then amended; and
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Deed of Trust
C. Purchase the Property at any foreclosure sale by offering the highest bid and then
have the bid credited on the Note.
6. In addition to the rights of Beneficiary contained herein, Beneficiary shall have the
further right to accelerate the maturity of the Note hereby secured and declare the entire
unpaid principal balance and all applicable interest immediately due should any one or
more of the following occur:
a. Subject to the terms and conditions of and the Limited Partners' rights under that
certain Amended and Restated Agreement of Limited Partnership (hereinafter
referred to as "Partnership Agreement "), executed by CCHFC Costa Tarragona II,
LLC, a Texas limited liability company, as General Partner, NRP Costa
Tarragona II LLC, a Texas limited liability company, as Special Limited Partner,
and Raymond James Tax Credit Fund 37 L.L.C., as Limited Partner, and dated as
of May 1, 2011, the Permitted Exceptions (as defined herein), and resident leases
of the Project, and excepting any items replaced in the ordinary course of
business, Grantor fully or partially sells, conveys, disposes of, alienates,
hypothecates, assigns, mortgages, pledges, transfers or encumbers all or any part
of the Property or any interest therein, the rents therefrom, the income therefrom,
or any other items of collateral, whether voluntarily or involuntarily, (provided
that condemnation actions shall be excepted), without the prior written consent of
Beneficiary;
b. Subject to the terms of the Partnership Agreement and the Permitted Exceptions,
Grantor fully or partially sells, conveys, assigns, mortgages, pledges, transfers or
encumbers a respective interest in Grantor (if Grantor is not a natural person or
persons but a corporation, partnership, trust or other legal entity), including, in
the event Grantor is a limited or general partnership, a joint venture or a limited
liability company, a change in the ownership interests in any general partner,
any joint venturer or any member either voluntarily, involuntarily or otherwise,
whether such interest is in the form of a beneficial or partnership interest or in
the form of a power of direction, control or management, or otherwise, without
the prior written consent of Beneficiary. Beneficiary consent shall not be
required for any transfer of a limited partner interest in Maker or for transfers of
ownership interests within such limited partner. Beneficiary consent shall not be
required for removal of a general partner by a limited partner pursuant to the
terms and conditions of the Partnership Agreement;
C. Grantor converts any of the HOME assisted units to a form of condominium,
cooperative ownership, or other non - residential use;
d. Grantor: (1) files (as debtor) or has filed against it, a petition for the
appointment of a receiver or for bankruptcy or insolvency, (2) becomes or is
adjudicated insolvent or bankrupt or admits in writing the inability to pay debts
as they mature, (3) petitions or applies to any tribunal for or consents to or does
not contest the appointment of a receiver, trustee, custodian or similar officer for
Grantor or for any principal or general partner of Grantor or for a substantial
part of the assets of Grantor, or (4) commences any case, proceeding or other
action under any bankruptcy, reorganization, arrangement, readjustment of debt,
dissolution or liquidation law or statute of any jurisdiction, whether now or
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Deed of Trust
hereafter in effect. In any involuntary proceeding Grantor shall have ninety (90)
days to have such matter dismissed;
e. The Property or any substantial part thereof is taken on execution or other
process of law in any action against Grantor;
£ Grantor permanently abandons the Property or a portion thereof, in which event
such abandonment shall constitute an assignment to Beneficiary, at
Beneficiary's option, of Grantor's interest in any lease or contract then affecting
the abandoned property;
g. Grantor defaults or at any time fails to timely comply with any one or more
terms or conditions of the Loan Documents beyond applicable notice and cure
period;
h. The holder of any lien or security interest on the Property, without implying the
consent of Beneficiary to the existence or creation of any such lien or security
interest, and whether superior or subordinate to this Deed of Trust or the Note
secured hereby, declares a default and such default is not cured within any
applicable grace period set forth in the applicable document or institutes
foreclosure or other proceedings for the enforcement of its remedies thereunder;
i. The Property, or any portion thereof, is subjected to actual or threatened waste
or to removal, demolition or alteration so that the value of the Property is
diminished thereby and Beneficiary determines, in its reasonable discretion, that
it is not adequately protected from any loss, damage or risk associated therewith;
j. Any representation or warranty made in the Loan Documents, such
representation or warranty made by Grantor, any principal of Grantor, general
partner in Grantor, any person authorized by Grantor to execute any of the
aforestated documents on behalf of Grantor, or by any indemnitor under any
indemnity executed in connection with the loan secured hereby, determined by
Beneficiary to have been false or misleading in any material and detrimental
respect at the time made;
k. Grantor (i) initiates any material changes in construction work on the Property
without Beneficiary's prior, written approval, such approval not to be
unreasonably delayed, withheld or conditional or (ii) fails to provide to
Beneficiary documentation, reasonably acceptable to Beneficiary, of the actual
Project costs incurred in connection with the Property;
1. Grantor fails to commence construction of the project for which this Deed of
Trust and the Note are given, and more specifically detailed in paragraph 15,
General Provisions hereof, by no later than sixty (60) days following the date
hereof or fails to complete construction in fall compliance with all conditions
and requirements set forth in the Loan Documents, including all attachments and
exhibits thereto, by no later than December 31, 2012; or
m. Grantor fails to timely submit all of the documentation required in the Loan
Documents and such failure continues for ten (10) business days after receipt of
notice regarding same; or
Upon the happening of any of the foregoing events of default, and at the expiration of
applicable notice and cure periods, all obligations, if any, of Beneficiary hereunder, including,
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Deed of Trust
without limitation, any obligation to advance funds hereunder or under any of the other Loan
Documents, shall immediately cease and terminate.
Subject to the terms and provisions of the Note, notwithstanding anything to the contrary herein
contained or inferable from any provisions hereof, during the occurrence and continuation of an
event of default, the unpaid principal and applicable accrued interest on the Note shall
immediately become due and payable in full, without the necessity of any further action of the
part of Beneficiary, and except as otherwise provided in the Loan Documents, Grantor
expressly waives any requirement of notice of intent to accelerate, or of notice of such
acceleration of, the maturity of the indebtedness evidenced by the Note.
A default hereunder which has not been cured within any applicable grace period shall be a
default under each of the other Loan Documents and any other contract or agreement, if
applicable, between Grantor and Beneficiary.
TRUSTEE'S DUTIES
If requested by Beneficiary to foreclose this lien, Trustee shall:
1. Either personally or by agent give notice of the foreclosure sale as required by the
Texas Property Code as then amended.
2. Sell and convey all or part of the Property to the highest bidder for cash with a general
warranty binding Grantor, subject to prior liens and to other exceptions to conveyance
and warranty.
3. From the proceeds of the sale, pay, in this order:
a. Expenses of foreclosure, including a reasonable and customary fee to Trustee;
b. To Beneficiary, the full amount of principal, interest, reasonable attorney's fees,
and other charges due and unpaid;
C. Any amounts required by law to be paid before payment to Grantor; and
d. To Grantor, any balance.
GENERAL PROVISIONS
1. If any of the Property is sold under this Deed of Trust, Grantor shall immediately
surrender possession to the purchaser. If Grantor fails to do so, Grantor shall become a
tenant at sufferance of the purchaser, subject to an action for forcible detainer.
2. Recitals in any Trustee's deed conveying the Property will be presumed to be true.
3. Proceeding under this Deed of Trust, filing suit for foreclosure, or pursuing any other
remedy will not constitute an election of remedies.
4. This lien shall remain superior to liens later created even if the time of payment of all or
part of the Note secured hereby is extended or part of the Property is released.
5. If any portion of the Note secured hereby cannot be lawfully secured by this Deed of
Trust, payment shall be applied first to discharge that portion.
6. Grantor assigns to Beneficiary all sums payable to or received by Grantor from
condemnation of all or part of the Property, from private sale in lieu of condemnation of
all or part of the Property, and from damages caused by public works or construction on
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Deed of Trust
or near the Property. Should such an event occur, said sums shall be payable to
Beneficiary. After deducting any expenses incurred by Beneficiary, including
reasonable attorney's fees, Beneficiary may release any remaining sums to Grantor or
apply such sums to reduce the Note. Beneficiary shall not be liable for failure to collect
or to exercise diligence in collecting any such sums.
7. Grantor assigns to Beneficiary absolutely, not only as collateral, all present and future
leases, rent and other income and receipts from the Property. Grantor warrants the
validity and enforceability of the assignment. Grantor may as Beneficiary's licensee
collect rent and other income and receipts as long as no event of default exists under the
Loan Documents and all applicable notice and cure periods have expired. Grantor will
apply all rent and other income and receipts to payment of the Note secured hereby and
performance of the Loan Documents, but if the rent and other income and receipts
exceed the amount due under the Note secured hereby, Grantor may retain the excess.
If an event of default exists under the Loan Documents and all applicable notice and
cure periods have expired, Beneficiary may with notice to Grantor, terminate Grantor's
license to collect and then as Grantor's agent may rent the Property if it is vacant and
collect all rent and other income and receipts. Beneficiary neither has nor assumes any
obligations as lessor or landlord with respect to any occupant of the Property.
Beneficiary shall apply all rent and other income and receipts collected under this
paragraph first to expenses incurred in exercising Beneficiary's rights and remedies and
then to Grantor's obligations under the Loan Documents in the order determined by
Beneficiary. Beneficiary is not required to act under this paragraph, and acting under
this paragraph does not waive any of Beneficiary's other rights or remedies. If Grantor
becomes a voluntary or involuntary bankrupt, Beneficiary's filing a proof of claim in
bankruptcy will be tantamount to the appointment of a receiver under Texas law.
8. Interest on the debt secured by this Deed of Trust shall be at but shall not exceed the
maximum amount of non - usurious interest that may be contracted for, taken, reserved,
charged, or received under Texas law; any interest in excess of that maximum amount
shall be credited on the principal of the debt or, if that has been paid, refunded. Upon
any acceleration or required or permitted prepayment, any such excess shall be canceled
automatically as of the date of acceleration or prepayment or, if already paid, credited
on the principal of the debt or, if the principal of the debt has been paid, refunded. This
provision overrides other provisions in this and all other instruments concerning the
debt.
9. Grantor shall at all times comply with and ensure that the Property and the Project
comply with all federal, state; and local statutes, ordinances, regulations and other
governmental or quasi - governmental requirements and private covenants now or
hereafter relating to the ownership, construction, rehabilitation, use or operation of the
Property, including, but not limited to, those concerning employment and compensation
of persons engaged in operation and maintenance of the Property and any
environmental, disabled person access or ecological requirements, even if such
compliance shall require structural changes to the Property. Grantor shall not use or
occupy, or allow the use or occupancy of, the Property in any manner which violates
any lease of the Property or any applicable federal, state, or local law, rule, regulation or
order or which constitutes a public or private nuisance or which makes void, voidable or
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Deed of Trust
cancelable, or increases the premium of, any insurance then in force with respect
thereto.
10. In the event that Grantor is the subject of any insolvency, bankruptcy, receivership,
dissolution, reorganization or similar proceeding, federal or state, voluntary or
involuntary, under any present or future law or act, Beneficiary is entitled to the
automatic and absolute lifting of any automatic stay as to the enforcement of its
remedies under the Loan Documents against the Property, including specifically, but
not limited to the stay imposed by Section 362 of the United States Federal Bankruptcy
Code, as amended. Grantor hereby consents to the immediate lifting of any such
automatic stay, and will not contest any motion by Beneficiary to lift such stay; Grantor
expressly acknowledges that the Property is not now, and will never be necessary to any
plan of reorganization of any type.
11. When the context requires, singular nouns and pronouns include the plural.
12. The term "Note" includes all sums secured by this Deed of Trust.
13. This Deed of Trust shall bind, inure to the benefit of, and be exercised by successors in
interest of all parties.
14. If Grantor and Maker are not the same person, the term "Grantor" shall include Maker.
15. Grantor represents that this Deed of Trust and the Note secured hereby are given for the
following purpose: for the construction of ten (10) HOME rental units at the Villas of
Costa Tarragona Il to provide affordable residences for persons whose annual gross
income does not exceed sixty percent (60 %) of the City of Corpus Christi area median
income, (said purpose referred to herein as the "Project ").
16. Beneficiary may remedy any default without waiving it.
17. Beneficiary may waive any default without waiving prior or subsequent defaults.
18. The term "days" when used herein shall mean calendar days. The term "business day"
when used herein shall mean that part of any given day from Monday through Friday
excluding - those scheduled holidays officially adopted and approved by the Corpus
Christi City Council for its employees.
19. All notices, demands, requests or other communications to be sent by one party to the
other hereunder or required by law shall be in writing and shall be deemed to have been
validly given or served by delivery of the same in person to the intended addressee, or
by depositing the same with Federal Express or another reputable private courier service
for next business day delivery to the intended addressee at its address set forth below or
at such other address as may be designated by such party as herein provided, or by
depositing the same in the United States mail, postage prepaid, registered or certified
mail, return receipt requested, addressed to the intended addressee at its address set
forth below or at such other address as may be designated by such party as herein
provided. All notices, demands and requests shall be effective upon such personal
delivery, or one (1) business day after being deposited with the private courier service,
or three (3) business days after being deposited in the United States mail as required
above. Rejection or other refusal to accept or the inability to deliver because of
changed address of which no notice was given as herein required shall be deemed to be
receipt of the notice, demand or request sent. Service of any notice required by Texas
Property Code Section 51.002, as the same may be amended, shall be effective when
the requirements to that statute are met. The following are the addresses of Beneficiary
and Grantor for all purposes in connection herewith:
12
Deed of Trust
BENEFICIARY:
Corpus Christi Community Improvement Corporation
P. O. Box 9277
Corpus Christi, TX 78469 -9277
Attn: General Manager
With a copy to:
City of Corpus Christi
City Attorney's Office
P. O. Box 9277
Corpus Christi, TX 78469 -9277
Costa Tarragona II, Ltd.
c/o Corpus Christi Housing Finance Corporation
1201 Leopard Street
Corpus Christi, Texas 78401
With a copy to:
Broad and Cassel
390 North Orange Ave., Suite 1400
Orlando, Florida 32801
Attn: David F. Leon, LLC
And a copy to:
Wood, Boykin & Wolter, P.C.
615 N. Upper Broadway, Suite 1100
Corpus Christi, Texas 78477
And a copy to:
The NRP Group, LLC
5309 Transportation Blvd.
Cleveland, Ohio 44125
Attn: Ted Einhorn
13
Deed of Trust
And a copy to:
The NRP Group, LLC
2819 South W.W. White Road
San Antonio, Texas 78222
And a copy to:
Raymond Jaynes Tax Credit Fund 37 L.L.C.
c/o Raymond James Tax Credit Funds, Inc.
880 Carillon Parkway
St. Petersburg, FL 33716
By giving to the other party hereto at least thirty (30) days' prior, written notice thereof
in accordance with the provisions hereof, the parties hereto shall have the right from
time to time to change their respective addresses and each shall have the right to specify
as its address any other address.
In the event of any conflict between the provisions of this Deed and those of the
Subordination Agreement, the Subordination Agreement shall prevail; provided
however that, with respect to any matter addressed in both such documents, the fact that
one document provides for greater, lesser or different rights or obligations than the other
shall not be deemed a conflict unless the applicable provisions are inconsistent and
could not be simultaneously enforced or performed.
[SIGNATURE PAGE TO FOLLOW]
14
Deed of Trust
GRANTOR:
Costa Tarragona II, Ltd., a Texas limited
partnership
By: CCHFC Costa Tarragona II, LLC, a Texas limited
liability company, its general partner
Attachments
Exhibit "A" — Description
Exhibit "B" -- Insurance Requirements
By: Corpus Christi Housing Finance Corp., a
Texas corporation, its se me be
By: �-
Ro Tolson, General Manager
(ACKNOWLEDGMENT)
0 MIN 10012N� ;MM
COUNTY OF NUECES
0- �"......,. AU k HUKU16
9 T C # UNCIL .... -------- S 1 o hl
SECR!?TARY `7'
This instrument was acknowledged before me on this 1) day of Act , 2411,
by Ronald L. Olson, the General Manager of the Corpus Christi Housing Finance orporation, a
Texas housing finance corporation, the sole member of CCHFC Costa Tarragona II, LLC, a
Texas limited liability company, acting as the general partner of Costa Tarragona II, Ltd., a
Texas limited partnership, on behalf of the partnership.
i s ESTHERVEIAZCKJEZ
My Commission Explrea
July 06, 201
AFTER RECORDING, RETURN TO
Corpus Christi Community Improvement Corporation
P. O. Box 9277
Corpus Christi, TX 78469 -9277
NOTARY PUBLIC, STA OF TEXAS
Deed of Trust
15
EXHIBIT A
PROPERTY DESCRIPTION
For a 6.174 acre tract located in Nueces County, Texas, being a portion of Lot 3A, Amending Plat of West
Park Addition. Lots 3A and 3B, a Subdivision of record in Volume 67, Page 494 of the Map Records of Nueces
County, Texas; Said 6.174 acre tract being more particularly described by metes and bounds as follows with
all bearings being referenced to the Easterly line of said Lot 3, Being S 04 °05 "20" W;
Commencing at a found 5/8 -inch iron rod at the Southerly Right-of-Way line of North Padre Island Drive -
S.H. 358 (variable R.O.W.), for the Northeast corner of said Lot 3B, and the Northwest corner of Lot 1, West
Park Addition Subdivision of Record in Volume 47, Page 25 of the Map Records of Nueces County, Texas;
Thence, N 88 ° 12'41" W, 230.81 feet, along the Southerly Right -of -Way line of North Padre Island Drive -
S.H. 358 (variable R.O.W.), to a found TXDOT Monument, for corner;
Thence, S 75 0 43'45" W, 167.98 feet, to a found TXDOT Monument, on the Southerly Right -of -Way line of
North Padre Island Drive - S.H. 358 (variable R.O.W.), For the Point of Beginning of a non - tangent curve to
the left and the Point of Beginning hereof;
Thence, Southeasterly, along the common line of said Lot 3A, Lot 3B, and the are of a non - tangent curve to
the left having a radius of 2200.00 feet, a central angle of 32 °46'07 ", an are length of 1258.22 feet and a chord
bearing: S 37 1 0757" E, a distance of 1241.15 feet, to a set 1/2 -inch iron rod with BPI cap located in the
southerly line of said Lot 3B, being a point in the irregular Northerly line of Lot 2 or West Park Addition
Lots 2 and 3, a Subdivision of record in Volume 65, Pages 11 -12 of the Map Records of Nueces County, Texas
for the Southeast corner of the herein described tract;
Thence, S 88 1 25'13" W, 478.14 feet, along a portion of the common boundary line of said Lot 3A and said Lot
2, to a set 1/2 -inch iron rod with BPI cap, for the Southwest corner of the herein described tract;
Thence, continuing along the common line of said Lot 2, and Lot 3A the following courses:
N 20 0 28'58" W, 303.75 feet, to a set 1/2 -inch iron rod with BPI cap for corner;
N 34 °53'28" W, 151.74 feet, to a set 112 -inch iron rod with BPI cap for corner;
N 31 0 38'26" E, 47.83 feet, to a set 1/2 -inch iron rod with BPI cap for corner;
N 20 °28'58 " W, 12.67 feet, to a set 1 /2-inch iron rod with BPI cap for corner;
N 58 °21'34 W, 70.00 feet, to a set 112 -inch iron rod with BPI cap for corner;
N 31 0 38 1 26" E, 27.21 feet, to a set 112 -ineh iron rod with BPI cap for corner;
N 55 0 43'57" W, 170.07 feet, to a set 1/2 -inch iron rod with BPI cap for corner;
N 48 0 37'13" E, 66.05 feet, to a set mag nail for corner;
N 44 0 18'22" W, 296.99 feet, to a found 5 /8-inch iron rod on the Southeast right of way line of North Padre
Island Drive (variable R.O.W.), for the Northwest corner of said Lot 3A;
Thence, along the Southeast right of way line of North Padre Island Drive (variable R.O.W.), the following
courses:
N 52 0 30'09" E, 54.97 feet, to a found TXDOT monument, for an angle corner of the herein described tract;
N 60 0 52'19" E, 93.63 feet, to a found TXDOT monument, for an angle corner of the herein described tract;
N 67 0 12'55" E, 129.63 feet, to a found TXDOT monument, to the Point of Beginning, containing 6.189 acres
(269,575 square feet) of land, more or less.
SAVE AND EXCEPT that certain called 0.006 acre and 0.009 acre tract as conveyed to Corpus Christi
Housing Finance Corporation, by Special Warranty Deed dated December 13, 2007 and recorded in
Document No. 2007061698 of the Nueces County Records, leaving a net acreage for said Lot 3 of 6.174 acres.
EXHIBIT B
INSURANCE REQUIREMENTS
GRANTOR AGREES TO:
1. Maintain, in a form acceptable to Beneficiary, an insurance policy that:
a. covers all improvements for their full insurable value as determined
when the policy is issued and renewed, unless Beneficiary approves
a smaller amount in writing;
b. contains an 80% coinsurance clause;
c. provides fire and extended coverage, including windstorm coverage;
d. protects Beneficiary with a standard mortgage clause,
e. provides flood insurance at any time the property is in a flood hazard
area; and
f. contains such other coverage as Beneficiary may reasonably require.
2. Comply at all times with the requirements of the 80% coinsurance clause.
3. Deliver the insurance policy to Beneficiary and deliver renewals to Beneficiary
at least ten days before expiration.
4. Keep all buildings occupied as required by the insurance policy.
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NUUMF1 OP i AGM -
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Doct _ - -e 7 5
05/24a'201 1161W!
Official Records of
DIANA T. BtlRREFtira
(In tl i r£:l' isiCND lere1n Whi =::{'1 restrjc -!i the s ;lel
Rental Or us� of the described
i'eli -iiiuilr Si - , x^ Hand Familial Z`ftatusr or
i
i.:n.t i orsyrl. fjr i � i rt i r 1 il' i d and Unenforceable
under FFbERAL LAIW� 3/12/39.
.sTt T OF TE AS
t't4[iH'L''i T i<IUE',i'::"
i.
her .bj cer ia thi - instrument ix.is FILED
t j me sr:ciued h er eirr 4v €4p.g tied was dulH RECORDED
1 el-'es cosJr14'j - Texas
D j Crilt:r ,. Bklr` ara